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United States v. Thomas

United States Court of Appeals, Seventh Circuit

January 10, 2017

United States of America, Plaintiff-Appellee,
v.
Melvin R. Thomas, also known as Melvin R. Thompson, Defendant-Appellant.

          Argued September 16, 2016

         Appeal from the United States District Court for the Western District of Wisconsin. No. 3:12-cr-00155-wmc-1 - William M. Conley, Chief Judge.

          Before Posner, Ripple, and Rovner, Circuit Judges.

          Ripple, Circuit Judge.

         Melvin 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 house.

         We 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.

         I

         BACKGROUND

         While 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.

         On 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.

         On 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.

         Shortly 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, [1] and twenty-two sandwich baggies with the corners cut out.[2] After seizing these items and questioning both Andrews and two other adults then present in the home, the officers left.

         Later 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.

         Based 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.[3] 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 out."[4]

         After 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."[5] When Mr. Thomas later testified, he also described the relationship as rocky.

         Two law 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 testimony.

         At the 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 de-tail."[6]

         The 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.[7] However, the district court allowed defense counsel to play a recording of her testimony at Mr. Thomas's state probation revocation proceedings.[8] 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's re-quest.[9]

         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.[10] 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.[11] Mr. Thomas also testified that his relationship with Andrews was rocky because they were cheating on each other.[12]

         Mr. Thomas also offered a wholly different explanation for his interaction with Bell on December 10. According to Mr. Thomas,

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 stop.[13]

         Mr. 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."[14]

         The jury later found Mr. Thomas guilty on all counts, and, specifically determined that the conspiracy involved 100 grams or more of heroin.[15]

         The presentence report ("PSR") recommended a two-level enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining a drug house.[16] 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.[17]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 report."[18]

         The 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.[19]

         II

         DISCUSSION

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