United States v. Thoma

Filing

[10446804] Affirmed;Terminated on the merits after oral hearing;Written, signed, published; Judges Tymkovich, Seymour and Kelly (authoring). Mandate to issue. [16-2044]

FILED
Appellate Case: 16-2044

Document: 01019770004

United States Court of Appeals
Date Filed: 02/24/2017 Circuit 1
Tenth Page:

February 24, 2017
PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.

No. 16-2044

DAVID SAVOY THOMAS,
Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. 1:13-CR-03897-MV-1)

Stephen P. McCue, Federal Public Defender, Albuquerque, New Mexico, for
Defendant - Appellant.
C. Paige Messec, Assistant United States Attorney (Damon P. Martinez, United
States Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff Appellee.

Before TYMKOVICH, Chief Judge, SEYMOUR, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Defendant-Appellant David Savoy Thomas appeals from his conviction of
four counts of robbery, 18 U.S.C. § 1951(a), following a jury trial. On appeal, he
challenges (1) the sufficiency of the evidence on Count 1, (2) an in-court

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identification, and (3) the denial of his motion to sever the Count 1 robbery
charge from the other robbery counts. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.

Background
In December 2013, Mr. Thomas was charged with four counts of Hobbs Act
robbery, which requires proof of an unlawful taking of property against another’s
will “by means of actual or threatened force, or violence, or fear of injury.”
18 U.S.C. § 1951(b)(1). He was also charged with one count of using a firearm
during a crime of violence. 18 U.S.C. § 924(c)(1)(A)(ii). According to the
indictment, Count 1 occurred on May 1, 2010, at a McDonald’s restaurant;
Counts 2 and 3 occurred on August 10 and August 17, 2013, respectively, at the
same Family Dollar store; and Count 4 occurred on October 19, 2013, at a Check
'n Go. Count 5 alleged that Mr. Thomas used a firearm during the Count 4
robbery. Each robbery occurred near the intersection of San Pedro and Lomas NE
in Albuquerque, New Mexico, and involved someone entering a store and
threatening or forcing an employee to provide money from a cash register.
Prior to trial, Mr. Thomas moved to sever Count 1 from the other counts,
arguing that Count 1 was not properly joined with the remaining counts and, even
if joinder was proper, that it would prejudice his defense. 1 R. 19–23. The
district court denied the motion, finding joinder to be proper and that Mr. Thomas
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had not met his burden to show that severance was warranted. United States v.
Thomas, 61 F. Supp. 3d 1221, 1226–27 (D.N.M. 2014).
The case then proceeded to trial on March 30, 2015. The jury convicted
Mr. Thomas on Counts 1–4 (the robbery offenses), but could not reach a verdict
on Count 5 (the firearm offense). The district court later sentenced Mr. Thomas
to 108 months of imprisonment, followed by three years of supervised release.
The evidence underlying the convictions is discussed below, as pertinent.

Discussion
A.

Sufficiency of the Evidence on Count 1
Mr. Thomas challenges the sufficiency of the evidence demonstrating force

on Count 1. The government argues that plain error review applies because Mr.
Thomas did not raise this specific challenge, but concedes that the review would
be similar because insufficiency of the evidence generally meets the plain error
test. Aplee. Br. at 17 (citing United States v. Rufai, 732 F.3d 1175, 1189 (10th
Cir. 2013)). Mr. Thomas made a general motion for a judgment of acquittal, Fed.
R. Crim. P. 29, at the close of the government’s case and at the end of defense
testimony with respect to Count 1, and we conclude our standard of review is de
novo. United States v. Johnson, 821 F.3d 1194, 1201 (10th Cir. 2016); see United
States v. Kelly, 535 F.3d 1229, 1234–35 (10th Cir. 2008).
Violent force is required to sustain a conviction under the Hobbs Act. In
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Johnson v. United States, the Supreme Court defined violent force as “force
capable of causing physical pain or injury to another person.” 559 U.S. 133, 140
(2010). This requires more than the “slightest offensive touching” that may
sustain a misdemeanor battery conviction, id. at 139, but may “consist . . . of only
th[e] degree of force necessary to inflict pain — a slap in the face, for example,”
id. at 143.
We view the evidence in the light most favorable to the verdict and ask
whether any rational trier of fact could find the element in question. Jackson v.
Virginia, 443 U.S. 307, 319 (1979). The McDonald’s employee who was acting
as a cashier during the robbery testified that the robber “bumped” him, got
“aggress[ive],” and “hit” or “pushed [him] away” as he was working. 3 R.
212–13. At the time, the employee thought someone had gotten upset with him
and pushed him. Id. at 213.
Mr. Thomas argues that a push is not enough under Johnson and that the
witness never testified that he experienced any pain or injury. But the push here
was not slight — it was an aggressive one. “Aggression” is derived from the
Latin word “aggressio,” which means “attack,” and is defined as “a forceful
action or procedure (as an unprovoked attack) esp. when intended to dominate or
master.” Merriam-Webster Collegiate Dictionary (11th ed. 2004). Reading the
record in the light most favorable to the verdict, we conclude that aggressive
pushing, as occurred here, is sufficient under Johnson. See, e.g., United States v.
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Romo-Villalobos, 674 F.3d 1246, 1249–50 (11th Cir. 2012) (holding that the
Florida crime of “resisting an officer with violence” requires more than de
minimus force and therefore comports with Johnson). We do not read Mr.
Thomas’s cases to suggest otherwise. See, e.g., United States v. Gardner, 823
F.3d 793, 804 (4th Cir. 2016) (“North Carolina has defined common law robbery
to encompass cases involving the use of minimal force, which does not satisfy the
condition of ‘violent force’ . . . .”); United States v. Flores-Cordero, 723 F.3d
1085, 1088 (9th Cir. 2013) (“Under prevailing Arizona law, the use of minimal
force is sufficient to constitute ‘resisting arrest,’” and therefore does not meet the
requirements of Johnson).
We also reject Mr. Thomas’s argument that proof of pain or injury is
required. Johnson only provides that the nature of the force must be “capable of
causing physical pain or injury.” 559 U.S. at 140 (emphasis added). Of course,
one may experience pain or injury from the impact of an aggressive push, by
falling down or coming into contact with a wall or other object. Thus, actual pain
or injury is not required and the push in this case suffices.
B.

In-Court Identification
Mr. Thomas also challenges witness Angela Montez’s in-court

identification on Count 2 that was admitted without judicial prescreening. He
asserts this procedure violated his right to due process. Specifically, he argues
that (1) the identification was unduly suggestive because he was the only African-5-

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American man at the defense table, (2) Ms. Montez had never previously been
asked to identify the Count 2 robber, and (3) her in-court identification took place
more than 19 months after the robbery. Our review of the identification
procedure for compliance with the Constitution is de novo; the factual basis
underlying the district court’s decision is reviewed for clear error. United States
v. Thompson, 524 F.3d 1126, 1135 (10th Cir. 2008).
The parties disagree whether due process requires the district court to make
a reliability assessment to determine the admissibility of an in-court
identification. At the heart of this dispute is whether the Supreme Court’s
decision in Perry v. New Hampshire, 565 U.S. 228 (2012), extends to in-court
identifications. In Perry, the defendant argued that the admission of an out-ofcourt identification violated his right to due process. The Supreme Court held
that the identification was admissible because “the Due Process Clause does not
require a preliminary judicial inquiry into the reliability of an eyewitness
identification when the identification was not procured under unnecessarily
suggestive circumstances arranged by law enforcement.” Id. at 248.
Since Perry, other circuits have debated whether or not the Court’s decision
overruled circuit-level precedent requiring inquiries into the suggestiveness and
reliability of in-court identifications. See, e.g., United States v. Correa-Osorio,
784 F.3d 11, 17–22 (1st Cir. 2015) (noting the debate and rejecting the
defendant’s in-court identification argument under both Perry and the circuit’s
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pre-Perry suggestiveness and reliability test); Lee v. Foster, 750 F.3d 687, 690–92
(7th Cir. 2014) (inquiring into the suggestiveness and reliability of an in-court
identification even after Perry). We find most persuasive the approach taken by
the Eleventh Circuit in United States v. Whatley, where the court held that the
Supreme Court’s decision in Perry applies not only to pretrial identifications but
also to in-court identifications. 719 F.3d 1206, 1214–17 (11th Cir. 2013). The
Court in Perry expressly rejected a “rule requiring trial judges to prescreen
eyewitness evidence for reliability any time an identification is made under
suggestive circumstances.” 565 U.S. at 240; see also Manning v. Patton, 639 F.
App’x 544, 548 (10th Cir. 2016) (citing Perry for the proposition that courts apply
the “due process check” when law enforcement arranged the suggestive
circumstances surrounding the eyewitness identification); United States v. Hill,
604 F. App’x 759, 787 (10th Cir. 2015) (same). 1 Neither the question presented
to the Court nor its holding is confined to pretrial identifications. See Perry, 565
U.S. at 236, 248. Rather, the Court referred generally to “eyewitness
identification[s],” id., and expressly rejected prescreening for in-court
identifications, id. at 244; Whatley, 719 F.3d at 1216.
Although we must adhere to prior precedent, there are exceptions, including
en banc reconsideration or supervening Supreme Court authority. In re Smith, 10

1

These orders and judgments are cited for their persuasive value on the
proper scope of Perry, not as precedent.
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F.3d 723, 724 (10th Cir. 1993) (per curiam). Accordingly, to the extent our prior
precedent indicates that a judicial reliability assessment is necessary in these
circumstances, such a rule is no longer viable.
Thus, Mr. Thomas lacks the factual predicate for a judicial reliability
assessment, and we must reject his argument on that score. Mr. Thomas contends
that the in-court identification was unduly suggestive because he was the only
African-American man at counsel table, the eyewitness had never been asked to
identify the robber before, and her in-court identification occurred more than 19
months after the robbery in Count 2. These circumstances, however, were not the
product of improper conduct by law enforcement — be it by police officers or the
prosecution. Of course, it is customary for defendants to sit at counsel table, and
defendants do not have a constitutional right to a pretrial identification. Whatley,
719 F.3d at 1216; see also United States v. Curtis, 344 F.3d 1057, 1063 (10th Cir.
2003).
Our holding is consistent with the view that evidentiary reliability is
traditionally a question for the jury, not the judge, and that other due-process
protections are in place that limit the weight the jury attributes to evidence that
may be unreliable. See Perry, 565 U.S. at 245.
We note that Mr. Thomas was able to confront the witness during crossexamination with the assistance of competent counsel. Cf. id. at 245–46. Indeed,
Mr. Thomas’s counsel established, among other things, that the witness was not
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wearing her glasses on the day of the robbery, and challenged the witness’s
description of the robber. See 3 R. 282–84. Mr. Thomas also presented an expert
witness who testified as to the fallibility of eyewitness identifications. Id. at
382–443. Additionally, the district court instructed the jury to consider the
circumstances surrounding the identification, including the manner in which Mr.
Thomas was presented as well as the length of time that had passed between the
commission of the offense and the subsequent identification. 1 R. 441–42; cf.
Perry, 565 U.S. at 246. Whether to credit the in-court identification was the
province of the jury.
C.

Denial of the Motion to Sever Count 1
Mr. Thomas also challenges the denial of his motion to sever Count 1.

Joinder of offenses in a single trial is appropriate when the offenses “are based on
the same act or transaction, or are connected with or constitute parts of a common
scheme or plan.” Fed. R. Crim. P. 8(a). Even when such requirements are met,
however, a trial court may elect to conduct separate trials if joinder appears to
prejudice the defendant. Fed. R. Crim. P. 14(a).
We review the district court’s severance denial for abuse of discretion,
while recognizing the defendant’s task in overturning such a decision is difficult.
United States v. Olsen, 519 F.3d 1096, 1102 (10th Cir. 2008). Although the
government argues that we should review some of Mr. Thomas’s arguments for
plain error because they were not presented to the district court, under any
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standard of review, his arguments are unavailing. To prevail on a motion to
sever, a defendant must demonstrate that the joinder would cause actual prejudice
to his defense that outweighs the expense and inconvenience of separate trials.
United States v. Hutchinson, 573 F.3d 1011, 1025 (10th Cir. 2009). It is not
enough to show that separate trials may have afforded a better chance of acquittal.
United States v. Hollis, 971 F.2d 1441, 1457 (10th Cir. 1992). Rather, to
demonstrate prejudice, a defendant must show the right to a fair trial is threatened
or actually impaired. Olsen, 519 F.3d at 1103.
Essentially, Mr. Thomas argues that the robbery in Count 1 occurred three
years before the other robberies, was dissimilar, would not have been admissible
in a trial regarding Counts 2–4, and was based upon palm-print evidence rather
than eyewitness testimony. We find no abuse of discretion in not severing.
The four robbery counts were “of the same or similar character,” Fed. R.
Crim. P. 8(a) — each robbery was committed near the same intersection in
Albuquerque, and Mr. Thomas was alleged to have entered the store and
immediately demanded money through the use of force or threat directed at an
employee. Any prejudice resulting from the mere cumulative effect of the
evidence underlying the multiple charges does not mandate severance. Hollis,
971 F.2d at 1457.
We also reject the supposition that the Count 1 evidence would have been
inadmissible in a separate trial on Counts 2 through 4. Evidence of uncharged
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acts may be admissible as res gestae, or intrinsic evidence inextricably connected
to the charged crimes. United States v. Ford, 613 F.3d 1263, 1267 (10th Cir.
2010). After all, it was Mr. Thomas’s palm print on the door of the McDonald’s
robbery that led the investigating officer to suspect Mr. Thomas in the subsequent
robberies and to then include his photograph in the array shown to some of the
witnesses of the later robberies. See 3 R. 193–96; cf. United States v. Thomas,
223 F. App’x 447, 454–55 (6th Cir. 2007) (unpublished) (upholding the admission
of testimony that explained why law enforcement focused on the defendant as res
gestae evidence).
Additionally, Mr. Thomas cites no authority to support his contention that
the different forms of evidence for different counts (e.g., palm-print evidence for
Count 1 versus eyewitness testimony for the remaining counts) warrants
severance. If anything, the different forms make it more likely that the jury was
able to distinguish between counts, thereby weighing against a finding of
prejudice. In any event, “limiting instructions are ‘ordinarily sufficient to cure
potential prejudice.’” Hutchinson, 573 F.3d at 1026 (quoting United States v.
Hardwell, 80 F.3d 1471, 1487 (10th Cir. 1996)). Here, the jury was properly
instructed that each count of the indictment and its underlying evidence must be
considered independently. 1. R. 456.
AFFIRMED.

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