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United States v. Thomas

United States Court of Appeals, Seventh Circuit

August 1, 2019

United States of America, Plaintiff-Appellee,
v.
Julian Thomas, Defendant-Appellant. United States of America, Plaintiff-Appellee,
v.
James Thompson, Defendant-Appellant.

          Argued March 27, 2019

          Submitted March 27, 2019

          Appeal from the United States District Court for the Western District of Wisconsin. Nos. 16-CR-00044-wmc-1, 16-CR-00044-wmc-2 - William M. Conley, Judge.

          Before Easterbrook, Kanne, and Hamilton, Circuit Judges.

          HAMILTON, CIRCUIT JUDGE

         A federal grand jury indicted defendants Julian Thomas and James Thompson for robbing a bank. Count One charged them with armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d). Count Two charged them with using and carrying a firearm by brandishing it during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). A joint trial was scheduled but then delayed- first at Thomas's request, and then again because Thompson's counsel faced an irreconcilable conflict of interest because of a newly discovered witness for the government. Shortly before the delayed trial, however, Thompson pleaded guilty and agreed to testify for the government against Thomas. Thomas went to trial. The jury found him guilty on both counts and also returned a special verdict finding that Thomas aided Thompson's brandishing of a firearm in the bank robbery. The district court sentenced Thomas to thirteen years in prison for the bank robbery and a consecutive seven years (the statutory minimum) for aiding and abetting Thompson's brandishing.

         Both defendants have appealed, but Thompson's attorney has filed an Anders brief explaining that he does not believe Thompson has any viable arguments on appeal. We agree and dismiss that appeal, No. 18-1519.[1] Thomas contends on appeal that certain evidence and argument at his trial were improper, that the delay between his indictment and his trial violated the Speedy Trial Clause of the Sixth Amendment, and that the jury instructions for 18 U.S.C. § 924(c) were erroneous. Thomas failed to raise all but one of these issues in the district court. We affirm his convictions and sentence in No. 18-1356.

         I. Factual & Procedural Background

         Thomas and Thompson were convicted of robbing the Peoples Community Bank in Plain, a small town in Sauk County, Wisconsin. The evidence at Thomas's trial showed that he had been planning a bank robbery for some time. Thompson so testified, and he explained that Thomas had told him they would enter the bank and Thompson would monitor the bank's tellers while Thomas would enter the vault with the bank's manager. They would then escape with a white female getaway driver.[2]

         That is what actually happened. On the day of the robbery, Thomas and Beth Manbauman (who was being paid in heroin) picked Thompson up at a bus stop. Thomas provided Thompson with a mask and loaded handgun. Thompson put the gun in his pocket. As Thompson and Thomas waited in an alley outside the bank, Thompson removed the handgun from his pocket. The two then ran into the bank. Both wore masks. Thompson pointed the gun at the bank's tellers. Thompson got two tellers to empty their cash drawers while Thomas forced the bank's manager to open the vault. They fled with approximately $60, 000 in a car driven by Manbauman.

         The government introduced evidence showing that on the day of the robbery, both Thompson and Manbauman had communicated with a particular telephone number. The number was registered to "Frank Smith" in Irvine, California, but Thompson testified that the number was listed in his telephone as belonging to "Juice," which was Thomas's nickname. Other witnesses testified that Thomas went by the nickname "Juice." The government was aware that Thomas would try to impeach Thompson's credibility, so the government called Thomas's probation officer, Michael Ellestad, who testified that he had used that same telephone number to contact Thomas while supervising him between November 2014 and June 2015.

         The government also introduced evidence that Thomas had a friend register as the straw owner of a used Mercedes Benz automobile that he bought days after the robbery. Before trial, the court ruled that the government could introduce a recording of a telephone call Thomas made while in pretrial detention in which he said the car was worth $30, 000. The lead case detective testified on cross-examination by the defense that he had listened to that telephone call.

         Thomas did not call any witnesses but introduced three exhibits. The defense theory was that James Britton, not Thomas, committed the robbery with Thompson. During closing arguments, according to Thomas, the prosecutor misled the jury by repeatedly using the word "you" while explaining the reasonable-person standard for "intimidation" under 18 U.S.C. § 2113(a). Without an objection from Thomas, the district court corrected the government in front of the jury, explaining that the inquiry is an objective one.

         The district court instructed the jury on the elements of the two counts against Thomas. Only the instructions for the firearm charge in Count Two are at issue in this appeal. The court instructed that a verdict of guilty on an aiding-and-aberting theory of liability required proof beyond a reasonable doubt that Thomas "knew before the bank robbery that James Thompson was going to use, carry, or brandish a firearm during and in relation to the bank robbery charged in Count 1," and that "[o]nce [Thomas] knew this, he intentionally facilitated" it. The court instructed the jurors that a guilty verdict would require that they "agree on at least one of these three ways"-using, carrying, or brandishing-"that James Thompson employed the firearm during the bank robbery." The court included a special verdict form asking whether Thomas aided Thompson's brandishing of a firearm, explaining: "The reason you're being asked this question is to make certain that even if you found someone guilty of Count 2 ... you all agree brandishing occurred." This finding was necessary to apply the statutory enhancement for brandishing. See 18 U.S.C. § 924(c)(1)(A)(ii). When the jury asked a question while deliberating, the court told them that "aid," "aids," or "aiding" have their ordinary meanings.

         The jury found Thomas guilty of both counts and answered yes to the special verdict question on brandishing. The district court sentenced Thomas to thirteen years in prison for the bank robbery charge and a consecutive sentence of seven years (the statutory minimum) for aiding and abetting Thompson's brandishing of the firearm.

         II. Discussion

         Thomas raises five issues on appeal. Three relate to evidence and argument at trial: (A) the admission of Thomas's probation officer's testimony that he used a particular telephone number to contact Thomas; (B) the admission of the telephone call Thomas made while in pretrial detention saying that he purchased a car worth $30, 000 after the bank robbery; and (C) the government's use of the word "you" instead of "reasonable person" in its closing argument to describe the inquiry for intimidation. The other two issues are (D) the Speedy Trial Clause claim ...


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