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United States v. Thomas

United States Court of Appeals, Seventh Circuit

July 26, 2018

United States of America, Plaintiff-Appellee,
John Thomas, Defendant-Appellant.

          Argued May 16, 2018

          Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 15-CR-74 - Richard L. Young, Judge.

          Before Flaum, Sykes, and Hamilton, Circuit Judges.


         Whitney "Strawberry" Blackwell stole cash and drugs from defendant-appellant John Thomas. His effort to punish her and recover his cash and drugs has landed him in federal prison with a life sentence. Thomas kidnapped Blackwell's younger brother and sister in Indiana and had them taken to Michigan and Kentucky, respectively, before law enforcement tracked them down.

         Thomas raises four issues on appeal: (a) that Blackwell was allowed to offer inadmissible and prejudicial testimony for the prosecution; (b) that the district court should have excluded cell-site location information about cell phones associated with Thomas; (c) that the court erred in its Sentencing Guideline calculations; and (d) that the court erred under Alleyne v. United States, 570 U.S. 99 (2013), by failing to have the jury decide that the kidnapping victims were under 18 years old, which increased the mandatory minimum sentence. Thomas did not raise any of these issues in the district court.

         We affirm the convictions and sentence. We first review the facts of the case and then turn to Thomas's new arguments. To summarize our conclusions: (a) the district court did not plainly err in dealing with Blackwell's testimony and her apparent inability to follow instructions about answering what she was asked and not raising certain subjects; (b) the court did not err by admitting the cell-site location evidence where Thomas did not move to suppress or even object to that evidence; (c) the court did not plainly err in its guideline calculation; and (d) the court made an Alleyne error regarding the ages of the kidnapping victims, but the error was harmless, calling for no remedy under the plain-error doctrine.

         I. Factual and Procedural Background

         On Thanksgiving night 2014, defendant John "Jay" Thomas met Whitney "Strawberry" Blackwell at Club Venus in Detroit where she worked as a stripper and prostitute. When Blackwell testified at trial, the prosecution asked the usually innocuous question, "What is the first thing you said to Mr. Thomas, the defendant, when you met him?" Blackwell said, "I asked him if he wanted his d*** sucked." After this first encounter, Thomas took in Blackwell as one of his girlfriends and supported her from his drug dealing. She never worked at Club Venus again. Their short and volatile relationship erupted on Valentine's Day, 2015. Blackwell testified at trial that Thomas "beat me up" that day, apparently because she "drank all of his water," though this supposed provocation never made it before the jury. After that beating, Black-well decided to leave Thomas.

         When the "baby-sitter" whom Thomas assigned to "snitch on" Blackwell was upstairs in his bedroom, Blackwell testified, she "tiptoed around the house all sneaky like," and stole from Thomas $50, 000 in cash, 2, 500 OxyContin pills, and an ounce of cocaine. Blackwell loaded up her contraband, her belongings, and her young child, and she fled. She paid a friend to drive her from Detroit to Chicago. She arrived in Chicago and stayed at the home of the father of one of her children until she suspected Thomas's associates were tracking her down. According to Blackwell's trial testimony, Thomas's friends would do "whatever Jay told him to do … [g]o out and sell drugs, shoot people, steal something." Fearing that Thomas would find her in Chicago, she left for Indianapolis, where her family lived and where she grew up. After she had left, Thomas and others tried to raid the Chicago residence where she had been staying.

         Thomas and his henchmen regrouped in Detroit. They decided to expand their search to Indianapolis. Thomas dispatched four of his underlings to an Indianapolis address. Telling them, "I want my money and my drugs," Thomas promised them $45, 000 if they found Blackwell and provided them with a "burner" phone and $1, 000 in cash. He also provided specific instructions about Blackwell's young son: "if you see C-, bring me C-." Thomas's henchmen went to Indianapolis and began their search for Blackwell. They obtained her family's address from local drug dealers. They staked out the home and saw Blackwell drop off her mother and leave. After alerting Thomas, he told them to wait for him. He drove from Detroit with several more confederates and asked one of his co-conspirators to buy zip ties as he prepared his next steps.

         In the early hours of March 2, 2015, Thomas and his gang drove to the house. Thomas kicked in the door. He found a family friend sleeping on the floor and ordered an accomplice to restrain the man with the zip ties. Thomas and others then broke into Blackwell's mother's bedroom, where her mother slept with Blackwell's younger brother and sister. Thomas asked the mother, "Where the f*** is Strawberry? Where the f*** is my money? That b**** took my money and took my dope. You know where she at?" Blackwell's mother said she did not know where the money was. Thomas ordered one accomplice to take the brother while Thomas himself took the sister. Thomas and his henchmen drove away from the house with the brother and sister in separate vehicles. After driving back to Detroit, Thomas ordered the brother to be kept in Michigan. He told a group of his underlings to take the sister to his house in Kentucky.

         Thomas directed his henchmen throughout the kidnapping. He told them to tell Blackwell's brother that he would be raped if he did not tell them where the money was. He also told them, "Get my money. … Squeeze my money out of him." The associates followed Thomas's lead, telling the brother that he would be raped if he did not cooperate. When the brother did not respond, one of the conspirators testified, Thomas told her "to do whatever I have to do; hurt him, cut him, beat him up, get whatever I could out of him." Thomas also told the boy on speakerphone, "I cut your sister's fingers off already and if you don't tell me where everything's at, [another person is] about to cut your fingers, too." Still getting no response from the brother, one kidnapper took a knife and actually cut the webbing of the brother's finger until "it was bleeding very bad."

         After Thomas seized the children, Blackwell's mother called the police. Officers overheard several ransom calls from Thomas, and they began a manhunt in Indiana, Michigan, Ohio, and Kentucky. Officers arrested Thomas in Detroit. They traced the cell phones of his accomplices and arrested them at Thomas's house and at another address where the kidnappers kept Blackwell's brother.

         While the officers conducted surveillance at the address where the brother was being held, the accomplices-feeling the pressure and unable to contact Thomas as he remained in custody-decided to abandon the plan and release the brother. They sped away from the address with the brother in the back of the car. Drunk and executing several evasive maneuvers, the driver crashed the vehicle. Officers found the brother inside the car, bound and blindfolded. The associates who held Blackwell's sister in Kentucky also gave up soon after they found themselves unable to contact Thomas. They left the sister in a restaurant in Ohio, and she took a taxi back home to Indianapolis.

         A federal grand jury indicted Thomas for conspiracy to commit kidnapping and two counts of kidnapping. At trial, virtually every participant and victim testified against Thomas, including Blackwell, her mother, her mother's friend who was zip-tied, her brother and sister, and Thomas's co-conspirators. The trial testimony contained graphic details related in sometimes colorful language.

         The jury convicted Thomas on all charges. At sentencing, the judge adopted the presentence investigation report prepared by the U.S. Probation Office that applied the U.S. Sentencing Guidelines. In calculating Thomas's offense level under the guidelines, the judge determined that the offense involved vulnerable victims and the use of physical restraints. With those enhancements, Thomas's guideline calculation of an offense level 52 was literally off the chart, well above the offense level 43 for which the guideline sentence is life in prison for all six criminal history categories. Without those enhancements, the offense level would have been 48, still off the chart. The court found that the statutory mandatory minimum sentence of twenty years should apply because the kidnapping victims were minors, but that issue was not submitted to the jury. The district court sentenced Thomas to life in prison.

         II. Analysis

         A. Evidentiary Rulings on ...

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