United States v. Thomas
| Decision Date | 06 January 2023 |
| Docket Number | 21-1610 |
| Parties | UNITED STATES OF AMERICA v. DELROY A. THOMAS, Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
Argued: December 6, 2022.
On Appeal from the District Court of the Virgin Islands (D.C. No. 1:15-cr-00039-001) District Judge: Honorable Wilma A Lewis
Martial A. Webster, Sr. [ARGUED] Counsel for Appellant.
Adam Sleeper [ARGUED] Office of United States Attorney
Rhonda Williams-Henry Office of United States Attorney Counsel for Appellee
Before: CHAGARES, Chief Judge, GREENAWAY, JR., and FISHER, Circuit Judges.
Delroy Thomas ("Thomas") was convicted by a jury of use of interstate commerce facility in commission of a murder for hire in violation of 18 U.S.C. § 1958(a) (count 1); attempted murder in the first degree in violation of 14 V.I.C. § 922(a)(1) (count 2); and attempted retaliation against a witness in violation of 14 V.I.C. § 1510(a)(1) (count 3). The District Court vacated count 2 at sentencing and sentenced Thomas consecutively to ten years of imprisonment on count 1 and five years of imprisonment on count 3. Thomas appeals several aspects of his conviction and sentence. Thomas's arguments all are meritless, and we will therefore affirm the judgment and sentence of the District Court.
We write primarily for the parties and recite only the facts essential to our decision. Because this appeal comes to us following a jury's guilty verdict, we recite the facts in the light most favorable to the Government.
An information in the Superior Court of the Virgin Islands charged Thomas with aggravated rape. The minor victim, P.E., and her mother, Felicia Bennerson, were witnesses in that matter. Thomas later was detained in connection with the Superior Court case at the Golden Grove Adult Correctional Facility ("Golden Grove").
Thomas sent text messages while detained at Golden Grove from a contraband cell phone in his name identifying P.E. and Bennerson as the people that got him "into this mess." Gov't Supplemental Appendix ("Gov't App.") 3. Thomas texted that he was "working on some shyt [sic] . . . [a] fuckin massacre," Gov't App. 2, and that he would "put a hit on she and she mother" if he remained incarcerated, Gov't App. 4.
Thomas then approached another inmate, Jason Navarro ("Navarro"), and asked if Navarro knew a hitman that could kill the witnesses in his Superior Court case. Navarro, unbeknownst to Thomas, was a confidential informant for the Drug Enforcement Administration ("DEA") and promptly reported Thomas's request to his handling agent, Special Agent Tracey Gardner. Gardner opened an investigation and began recording phone conversations between Thomas and Navarro.
In the recorded calls, Thomas reiterated to Navarro that he wanted P.E. and her mother killed. Thomas stated, for example, that he wanted the two "off" and that he was not taking any chances, Gov't App. 8 (Tr. Ex. 1-4) 5:01-5:07; that he would get the gun; and that he wanted the two killed before he posted bail so that he would have an alibi. Thomas also acknowledged that if Navarro's partner did not carry out the hit, Thomas would have someone else do it. Thomas, in fact, told Navarro that the hit was the result of "eight months of thinking," Gov't App. 9 (Tr. Ex. 1-5) 4:12-4:21, and that Gov't App. 9 (Tr. Ex. 1-5) 2:53-2:58. Navarro told Thomas that if he were serious, he had to send Navarro photographs of the witnesses that he wanted killed. Thomas then sent photographs of P.E. and Bennerson to Navarro. Navarro and Thomas also discussed the price that Thomas was willing to pay for the hit as well as the logistics of a $500 down payment, which Navarro organized with the DEA.
Thomas made the down payment through a friend, Shelbie Beazer. Thomas provided Beazer with a phone number and told Beazer to call the person with the money and find out where to meet him. Beazer did so. Thomas then instructed Beazer to drop that money into the console of a designated vehicle. Beazer again did as Thomas requested. The DEA monitored the drop. Beazer was pulled over by authorities shortly after dropping the money into the designated vehicle, and she was on the phone with Thomas at the time.
Thomas moved under Federal Rule of Criminal Procedure ("Rule") 29 for a judgment of acquittal after the Government's case in chief and again at the end of the trial. The court denied the motion, reasoning that the text messages and recorded phone conversations provided sufficient evidence to send each count to the jury.
Alexianna Charles, Navarro's fiance, previously had been arrested by the Department of Homeland Security ("DHS") for immigration violations. Charles pleaded guilty to those charges and was sentenced to two years of probation with a recommendation by the court that she be removed by DHS. DHS removed Charles in March 2016. The prosecution learned of Charles's removal in May 2016.
Thomas moved before trial to dismiss the case against him for spoilation of evidence. Thomas argued that Charles was involved in the money drop and that through Charles's removal, the Government removed a material witness and failed to preserve exculpatory information in the form of Charles's testimony. The Court denied the motion, finding that Thomas failed to establish that the evidence was exculpatory or destroyed in bad faith.
The Government requested the call log of Golden Grove Corrections Officer Lucien Lake the week before trial after learning that Thomas planned to argue that Lake also participated in the money drop. The case agent received the call log on Friday, July 5, 2019, and emailed it to the U.S. Attorney in this case on Saturday, July 6, 2019. The U.S. Attorney emailed the call log to Thomas's counsel that same day. The call log showed calls between the phone number associated with Navarro and the phone number associated with Lake on the day of the money drop.
Trial began Monday, July 8, 2019. The trial, including the jury's deliberations, lasted 10 days. Thomas's counsel represented that he did not see the email with the call log until after trial ended. Thomas moved for a new trial after the jury returned its verdict, arguing that the call log constituted newly discovered evidence that warranted a new trial and that the Government withheld that evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). The court denied the motion, finding that the evidence was not newly discovered and would not have undermined critical inculpatory evidence so as to warrant a new trial.
The day before the jury returned its verdict, the Virgin Islands Daily News (the "Daily News") published an article entitled "Accused rapist on trial in St. Croix murder-for-hire plot." App. 133. The article named Thomas as the defendant, stated that Thomas had attempted to hire someone to kill the victim and her mother in his pending Superior Court case, and identified the District Court judge. The article also included information about evidence introduced at trial, including quotes from the recorded conversations between Thomas and Navarro. The District Court, Thomas, and Thomas's counsel were unaware of the article at the time it was published.
Thomas moved for a new trial under Rule 33 after the jury returned its verdict, arguing that his right to an impartial jury was violated because the jurors considered the article in convicting him. The District Court denied the motion, finding that Thomas had failed to demonstrate that the jury was exposed to the article or that, even if they were, it prevented the jury from deciding the case impartially.
At sentencing, the court vacated Thomas's conviction of attempted murder pursuant to 14 V.I.C. § 104 and sentenced Thomas to consecutive sentences of ten years of imprisonment on count 1 and five years of imprisonment on count 3. Thomas appealed.
Thomas argues on appeal that (1) the District Court erred in denying his Rule 29 motion for judgment of acquittal because the evidence was insufficient to find him guilty of counts 1, 2 and 3; (2) the District Court erred in denying his Rule 33 motion for a new trial because the jury was not impartial and because newly discovered evidence warranted a new trial; (3) the District Court erred in denying his motion to dismiss for spoilation of evidence based on Charles's removal; and (4) the imposed consecutive sentences violate federal and local sentencing statutes. We consider each argument in turn.
We start by considering Thomas's argument that the District Court erred in denying his Rule 29 motion for judgment of acquittal. On appeal from the denial of a motion for judgment of acquittal, we exercise plenary review and will sustain the verdict if, viewing the evidence in the light most favorable to the Government, "any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence." United States v. Smith, 294 F.3d 473, 476 (3d Cir. 2002) (emphasis added).
The elements of use of interstate commerce facility in commission of a murder for hire in violation of 18 U.S.C. § 1958(a) are (1) interstate travel or use of the mail or an interstate facility; (2) with the intent that a murder be committed; and (3) that it be committed as consideration for the receipt of or a promise to pay anything of pecuniary value. United States v. Hernandez, 141 F.3d 1042, 1056 (11th Cir. 1998) (quoting 18 U.S.C. § 1958). Thomas challenges the second two elements.
There were sufficient facts presented to the jury that could lead a rational trier of fact to find beyond a reasonable doubt that Thomas intended a murder...
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