May 16, 2018
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No. 15-CR-74 -
Richard L. Young, Judge.
Flaum, Sykes, and Hamilton, Circuit Judges.
HAMILTON, CIRCUIT JUDGE
"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.
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.
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.
Factual and Procedural Background
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.
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.
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.
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.
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."
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.
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.
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.
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.
Evidentiary Rulings on ...