September 16, 2016
from the United States District Court for the Western
District of Wisconsin. No. 3:12-cr-00155-wmc-1 - William M.
Conley, Chief Judge.
Posner, Ripple, and Rovner, Circuit Judges.
Ripple, Circuit Judge.
Thomas was indicted by a grand jury on one count of
conspiracy to possess, with intent to distribute, a mixture
or substance containing heroin, in violation of 21 U.S.C.
§§ 841(a)(1), 846; and two counts of possessing,
with intent to distribute, a mixture or substance containing
heroin, in violation of 21 U.S.C. § 841(a)(1). He
pleaded not guilty, and the case proceeded to trial. At the
end of the Government's case, Mr. Thomas moved for a
judgment of acquittal. The district court denied the motion.
A jury later found Mr. Thomas guilty of the charged offenses,
and the court subsequently sentenced him to 216 months'
imprisonment. Mr. Thomas timely appealed. He now challenges
the sufficiency of the evidence to support his conspiracy
conviction. He also maintains that the district court erred
in imposing a sentencing enhancement for maintaining a drug
conclude that there is sufficient evidence to sustain the
conspiracy charge and that the evidence supports the district
court's imposition of the sentencing enhancement.
Accordingly, we affirm the judgment of the district court.
investigating a heroin dealer named Domingo Blount, Drug
Enforcement Agency ("DEA") agents intercepted,
through a court-authorized wiretap, Blount's incoming and
outgoing telephone calls. Among the intercepted calls were
twenty-nine calls from Blount's number to Mr. Thomas.
Discovery of these calls eventually led to the DEA's
investigating Mr. Thomas's activities. Through subsequent
surveillance, the agents in Chicago observed several meetings
between Blount and Mr. Thomas.
November 9, 2010, the DEA learned that Mr. Thomas was
traveling back to Wisconsin from Chicago and that he was
carrying heroin. Madison police officers conducted a traffic
stop of the vehicle. Anita Andrews was the driver; Mr. Thomas
was the passenger. The officers searched the car and patted
Andrews down, but did not find any contraband and therefore
allowed the car to proceed. Andrews later testified that the
officers had failed to detect any drugs because she had
concealed them in her genital area.
December 10, 2010, officers stopped another vehicle arriving
in Madison from Chicago. Porcha Bell was driving; Mr. Thomas
was the passenger. When questioned, Bell admitted that, at
Mr. Thomas's request, she was concealing twenty-five
grams of heroin in her vagina. She said that she had
acquiesced to his request because Mr. Thomas had promised to
buy her children Christmas presents and because she had
feared that Mr. Thomas would leave her in Chicago if she
refused. During this encounter, Mr. Thomas was arrested on a
Wisconsin probation hold.
thereafter, agents conducted a consent search at
Andrews's home. During the course of that search, the
agents found a digital scale, a chemical substance used to
cut or mix drugs,  and twenty-two
sandwich baggies with the corners cut out. After seizing these items and questioning
both Andrews and two other adults then present in the home,
the officers left.
that morning, agents listened to Mr. Thomas's post-arrest
jail calls. Mr. Thomas's first call was to his mother. In
this phone call, Mr. Thomas asked his mother to call Andrews
and to tell her to get rid of his "stash" and to
get the cash out of the Cadillac that he had parked at her
residence. Based on this call, agents seized the automobile.
They found approximately $2, 460 in the glove box of the car.
No drugs were found.
on this evidence, Mr. Thomas was indicted by a grand jury on
one count of conspiracy to possess, with intent to
distribute, a mixture or substance containing heroin; and two
counts of possessing, with intent to distribute, a mixture or
substance containing heroin. A three-day jury trial commenced
on May 18, 2015. Andrews testified
for the Government. In addition to the encounters already
described, she testified that she had driven Mr. Thomas to
Chicago on several occasions. After purchasing the heroin,
the pair would return to Madison and either stop at the home
of Mr. Thomas's mother or drive directly to Andrews's
house. Testifying about the November 10, 2010 stop, Andrews
stated that, during this stop, she had concealed heroin in
her genital area because Mr. Thomas had told her to
"[d]o this or I'll knock you the f-- k
the November 10 stop, Andrews's relationship with Mr.
Thomas soured. Andrews testified that she rarely saw Mr.
Thomas after their breakup, although Mr. Thomas still kept
personal items at her home. At trial, Andrews described Mr.
Thomas as having "items there, but he was not-he was
gone all the time. I barely saw him." When Mr. Thomas later testified, he also
described the relationship as rocky.
enforcement officers also testified at trial. A DEA agent,
Terrence Glynn, discussed the wiretap on Blount's phone
and conversations involving Mr. Thomas. Detective Dorothy
Rietzler of the Madison Police Department testified about the
December 10, 2010 stop. Mr. Thomas does not dispute this
conclusion of the Government's case, Mr. Thomas moved for
a judgment of acquittal. The district court denied the motion
stating, "I think the circumstantial evidence as such is
so strong that I'm going to allow the case to proceed,
although you've preserved your record and you can make
what arguments you wish at the appropriate time in more
defense then called two witnesses: Porcha Bell and Mr. Thomas
himself. Bell was subpoenaed to appear by both the Government
and the defense at trial, but did not show up. However, the district court allowed
defense counsel to play a recording of her testimony at Mr.
Thomas's state probation revocation
proceedings. There, Bell recounted her
version of the events of December 10, 2010, including that
she had concealed drugs in her genital area at Mr.
Thomas also took the stand. He offered a different
explanation for his contact with Blount and his interaction
with Bell. According to Mr. Thomas, he was purchasing
medicinal marijuana, not heroin, from Blount. He admitted that he communicated with
Blount, via text messages and telephone calls, but testified
that those communications, which included references to
selling drugs on "corners, " were referring only to
marijuana and that Andrews did not help him with these
sales. Mr. Thomas also testified
that his relationship with Andrews was rocky because they
were cheating on each other.
Thomas also offered a wholly different explanation for his
interaction with Bell on December 10. According to Mr.
I was at-I had went to a party over in the Castille area and
later that night my cousin Matt and Porcha Bell had showed up
at this party. Matt had ended up going home with a chick, a
female that he messing with, so I had ended up getting the
van from him. And a little later after that, I had-I was
getting ready to go home and Porcha Bell had asked me to drop
her off and I told Porcha Bell that since we both were
heading in the same direction, on the east side, I told
Porcha Bell that I would drop her off on the conditions that
she drive to her destination and then I would drive home from
there, which was to my house, Anita-me and Anita's house.
Because I didn't want to drive because I had like four
driving traffic tickets that I had owed money on.
I asked Porcha Bell did she have a driver's license and
she told me yeah. So I let her drive. On my way home, she got
off the beltline on Stoughton over on Pflaum Road and she
didn't have-she was driving without the headlights on, so
we ended up getting pulled over for a traffic
Thomas asserted that he was unaware of the drugs in
Bell's possession. He "believe[d] that Detective
Rietzler coerced her to say that those narcotics belong[ed]
to [him] during the traffic stop."
jury later found Mr. Thomas guilty on all counts, and,
specifically determined that the conspiracy involved 100
grams or more of heroin.
presentence report ("PSR") recommended a two-level
enhancement under U.S.S.G. § 2D1.1(b)(12) for
maintaining a drug house. It further advised that Mr. Thomas
qualified as a career offender under § 4B1.1(b)(1)
because of his four prior felony convictions for controlled
substance offenses.Mr. Thomas did
not file written objections to the PSR, but at the sentencing
hearing his counsel "maintain[ed] [Mr. Thomas's]
innocence and object[ed] to the factual portions and the full
district court concluded that, because of the four prior
felony controlled substance offenses, Mr. Thomas was a career
offender. This determination resulted in an advisory
guideline imprisonment range of 360 months to life. The court
decided to impose a sentence of 216 months' imprisonment.
Mr. Thomas timely filed this appeal.