United States v. Thomas , 189 F. App'x 219 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4496
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LENDRO MICHAEL THOMAS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (CR-
03-189)
Submitted: June 1, 2006 Decided: July 11, 2006
Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Martin H. Schreiber, II, BROWN, GOLDSTEIN & LEVY, L.L.P.,
Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, John F. Purcell, Jr., Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIUM
Lendro Michael Thomas appeals his convictions and 204 month
sentence for various drug and gun crimes. Thomas argues that the
district court erred at trial in excluding expert testimony
concerning narcotic trafficking methods, admitting evidence that
Thomas sold drugs on a previous occasion, and refusing to allow
Thomas to call a Government investigator to testify about certain
statements made by a deceased co-defendant. Thomas further
contends that the district court erred in sentencing him as a
career offender under the U.S. Sentencing Guidelines. Because we
find Thomas’s arguments unpersuasive, we affirm his convictions and
sentence.
I.
On February 10, 2003, Edwin Matthews and Thomas were arrested
on the 3400 block of Spelman Avenue, near the Cherry Hill public
housing project in Baltimore, Maryland. Minutes before his arrest,
Thomas was involved in the sale of two $10 gel caps, or doses, of
heroin to an undercover Baltimore police detective, John Calpin.
Calpin testified that he and his partner, Chris O’Ree, drove onto
the 3400 block of Spelman Avenue, knowing that Cherry Hill was an
“open air drug market.” (J.A. at 105.)
Upon arriving, Calpin noticed a black male, who was later
determined to be Matthews, dressed in a black knit hat and a dark
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jacket over a hooded sweatshirt or jacket. The police detectives
slowed down their vehicle, and Matthews approached in order to
initiate a drug sale, offering the detectives “dope, coke, ready,
and weed,” (J.A. at 108), which are street names for heroin,
cocaine, crack cocaine, and marijuana, respectively. Calpin asked
for “two dope,” at which point Matthews asked Calpin to follow him
into an alleyway between two buildings. There, Calpin saw another
black male dressed in dark blue, whom he identified at trial as
Thomas. Calpin then gave the men a $20 bill, and Thomas gave
Calpin two gel caps of heroin.
After the drug transaction, Calpin and O’Ree drove away and
reported what had occurred, along with descriptions of Thomas and
Matthews, to a waiting arrest team. A few minutes later, Sargent
Mark Janicki and his enforcement team arrived on the scene. Upon
arriving, Janicki saw Thomas leaning against a car on the 3400
block of Spelman. Janicki, in plainclothes, approached Thomas and
identified himself as a police officer. Thomas then suddenly
placed both of his hands inside his coat pockets. Janicki
immediately grabbed Thomas’s hands because he was concerned Thomas
was reaching for a gun. Janicki then secured Thomas and removed a
gun from Thomas’s right coat pocket. Janicki also recovered from
Thomas’s coat pockets 51 gel caps of heroin and 30 vials of
cocaine, all together amounting to an estimated total worth of
$900. Janicki also recovered a $20 bill from Thomas’s pants
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pocket, the same $20 bill that Calpin had traded for drugs shortly
before Thomas’s arrest. Matthews was also arrested, and Calpin
positively identified the two men as the ones who sold him heroin.
On April 17, 2003, Thomas was indicted on four counts by a
grand jury in the District of Maryland. Count 1 charged Thomas
with possession with intent to distribute a mixture of cocaine and
heroin, in violation of 21 U.S.C. § 841. Count 2 charged Thomas
with distribution of heroin, in violation of 21 U.S.C. § 841.
Count 3 charged Thomas with possession of a firearm in furtherance
of a drug trafficking crime, in violation of 18 U.S.C. § 924(c).
Count 4 charged Thomas with possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g). Matthews was also
charged with respect to Counts 1 and 2, but he died prior to trial.
On June 16, 2004, a jury returned verdicts convicting Thomas
on all four counts of the indictment. On April 29, 2005, the
district court sentenced Thomas to concurrent terms of 144 months
of imprisonment on Counts 1, 2, and 4 and to a consecutive term of
60 months on Count 3, for a total sentence of 204 months. Thomas
timely appealed, challenging both his convictions and sentence.
II.
Thomas argues that the district court erred by excluding his
expert’s testimony about narcotics trafficking methods in Baltimore
after the court allowed the Government to present such evidence.
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We review for abuse of discretion the district court’s decision to
admit or exclude evidence, see United States v. Hodge, 354 F.3d
305, 312 (4th Cir. 2004); see also United States v. Hopkins, 310
F.3d 145, 151 (4th Cir. 2002) (including expert testimony).
Prior to trial, both Thomas and the Government indicated their
intent to call expert witnesses to testify about how the drug trade
operates in Baltimore. Thomas wanted to present as an expert a
former buyer and seller of narcotics in Baltimore. Thomas’s
“expert” would testify that street-level dealers divide possession
of the drugs, the purchase money, and a firearm among separate
individuals so that no one individual is in possession of all three
items. The Government intended to introduce an expert who would
testify that a dealer “[p]retty much can’t do the [drug] business
without a firearm around.” (J.A. at 21.)
The district court made a preliminary ruling refusing to allow
either side to present such testimony. The court noted that this
was “a case about eyewitness identification and whether the jury
believes it or not.” (J.A. at 22.) Accordingly, the court wished
to keep the testimony simple and prevent Thomas’s “expert,” who was
not present at the scene of the crime, from testifying that “[w]hat
the [G]overnment says happened didn’t happen.” (J.A. at 18.) The
court, however, in making its ruling noted that the Government
would be able to argue about the obvious “connection between guns
and drugs, about who carries guns.” (J.A. at 22.)
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During Janicki’s testimony at trial, the Government attempted
to ask Janicki why he worried about guns during his undercover drug
operations. Thomas objected based on the court’s preliminary
ruling disallowing expert testimony. A brief bench conference
ensued, where the Government argued that it was not attempting to
qualify Janicki as an expert; rather, it sought to ask only about
one of the tools of the drug trade in order to prove Count 3 of the
indictment, which charged Thomas with knowingly possessing a
firearm in furtherance of a drug trafficking crime.
The district court allowed the Government to proceed on this
point, while also explaining to Thomas that he would still not be
allowed to call his “expert.” The Government then questioned
Janicki as follows:
Q. Detective, I think I asked you if it was unusual for
you, based on your experience and this quantity of drugs,
to find a firearm with a person, on a person carrying
this amount of drugs?
A. No.
Q. Why not?
A. Over my years in my experience I’ve arrested many
people with handguns that were selling drugs just for the
fact that it’s a dangerous business, one. You hear, I
see it, people getting killed every day. They’re selling
drugs on the street corners. People robbing drug
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dealers, it happens every day. It’s been my experience
that drug dealers that are selling carry weapons. (J.A.
at 61-62.)
This was the full extent of Janicki’s testimony on the question.
Thomas contends that by allowing Janicki’s testimony, the
district court was required to allow the testimony of Thomas’s
expert as well. We disagree.
The purpose of Janicki’s testimony was to establish that, in
his experience, firearms are common tools of the drug trade. This
testimony was germane to Count 3 of the indictment, in which the
Government had to prove that Thomas knowingly possessed a firearm
in furtherance of a drug trafficking crime. See United States v.
Ward, 171 F.3d 188, 195 (4th Cir. 1999) (“Guns are tools of the
drug trade and are commonly recognized articles of narcotics
paraphernalia.”); United States v. Kennedy, 32 F.3d 876, 882 (4th
Cir. 1994) (noting that “the law has uniformly recognized that
substantial dealers in narcotics possess firearms”) (internal
quotation marks omitted); United States v. Grogins, 163 F.3d 795,
799 (4th Cir. 1998) (noting the “background fact that the
connection between illegal drug operations and guns in our society
is a tight one”).
The theory of Thomas’s defense, however, was one of mistaken
identity. His theory was based on an argument that Thomas had
neither drugs nor a firearm in his possession when he was arrested
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and that the police were “mixed up” in their identification of
Thomas. (J.A. at 199.) Thomas was not attempting to rebut the §
924(c) point that drugs and firearms go hand in hand. Rather, the
purpose of the expert’s testimony was to impeach the identification
of Thomas via an expert who was not at the scene of the crime. In
other words, Thomas sought to prove -- through an expert who was
not at the scene -- that the police were “mixed up” because it was
impossible for the same man to possess drugs, purchase money, and
a firearm. The common practices of Baltimore drug dealers,
however, were irrelevant to whether the jury believed Janicki’s
testimony that he seized drugs and a firearm from Thomas’s person.
Accordingly, the district court did not abuse its broad discretion
in disallowing the testimony as irrelevant because this was a
“simple case” concerning “eyewitness identification and whether
the jury believes it or not.” (J.A. at 22.) Furthermore, we hold
that the district court also did not abuse its discretion in
refusing to allow the expert testimony simply because a Government
witness testified to the commonly recognized fact that people who
sell drugs often carry firearms.
III.
Thomas next argues that the district court violated Federal
Rule of Evidence 404(b) by admitting evidence that he had sold
drugs nine days prior to the sale at issue here. We conclude that
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the district court did not abuse its discretion in admitting this
evidence.
During trial, the Government called Detective Floyd Jones, who
was prepared to testify that he made an undercover purchase of
heroin from Thomas on February 1, 2003. Thomas objected, arguing
that Jones’s testimony was barred by Rule 404(b), which states:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . . .
Fed. R. Evid. 404(b). The district court overruled the objection
and allowed the testimony, basing its decision on Fourth Circuit
precedent and its opinion that the testimony “goes both to intent
and to identity.” (J.A. at 203.)
Rule 404(b) is an “inclusionary rule.” United States v. Mark,
943 F.2d 444, 447 (4th Cir. 1991) (internal quotation marks
omitted). The rule acts as a bar on evidence that “tends to prove
only criminal disposition.” United States v. Higgs, 353 F.3d 281,
311 (4th Cir. 2003) (internal quotation marks omitted and emphasis
in original). Thus,
evidence is admissible if (1) it is relevant to an issue,
such as an element of an offense, and is not offered to
establish the general character of the defendant; (2) it
is necessary in the sense that it is probative of an
essential claim or an element of the offense; (3) it is
reliable; and (4) its probative value is not
substantially outweighed by confusion or unfair prejudice
9
in the sense that it tends to subordinate reason to
emotion in the factfinding process.
Id. (internal quotation marks and alterations omitted).
The evidence was relevant and necessary here because it went
toward identity and intent, two issues that Thomas contested at
trial and the Government was required to prove. See Mark, 943 F.2d
at 448 (“[T]he relevance of the evidence derives from the
defendant’s having possessed the same state of mind in the
commission of both the extrinsic act and the charged offense.”
(internal quotation marks omitted)); Hodge, 354 F.3d at 312(holding that evidence of defendant’s previous drug transaction
“was relevant and necessary in that it tended to show the existence
of a continuing narcotics business” as well as the defendant’s
“knowledge of the drug trade and his intent to distribute”); see
also United States v. Cassell, 292 F.3d 788, 793 (D.C. Cir. 2002)
(noting that “in cases where a defendant is charged with unlawful
possession of something, evidence that he possessed the same or
similar things at other times is often quite relevant to this
knowledge and intent with regard to the crime charged” (internal
quotation marks omitted)). The evidence was also reliable, in that
Jones’s testimony was sufficient to allow the jury to “reasonably
conclude that the act occurred and that the defendant was the
actor.” Huddleston v. United States, 485 U.S. 681, 689 (1988).
Finally, the evidence’s probative value was not outweighed by
10
confusion or unfair prejudice because the evidence “did not involve
conduct any more sensational or disturbing than the crimes with
which [Thomas] was charged.” United States v. Boyd, 53 F.3d 631,
637 (4th Cir. 1995). In sum, the district court did not abuse its
discretion in allowing the testimony under Rule 404(b).
IV.
Thomas next argues that the district court erred in refusing
to admit statements made by Matthews after his arrest. We conclude
that any error the district court made in excluding the statements
was harmless.
The Government interviewed co-defendant Matthews after his and
Thomas’s arrest. During that interview, Matthews claimed he was
innocent of the charges and had been on the street in order to
purchase drugs as opposed to selling. His statement attempted to
implicate Thomas and another man, whom Matthews had identified
prior to his death as “Fry,” or “High Fry.”
During trial, the defense called Antionette Bolden, who stated
she was with Thomas on the day of his arrest. Bolden testified
that the police also detained a man named High Fry that day before
releasing him shortly thereafter. Bolden’s testimony further
implied that the police agreed to release High Fry in exchange for
information about people in possession of guns or drugs. In
response to Government questioning on cross-examination, Bolden
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stated that she never attempted to report the existence of High Fry
to the authorities.
Thomas contends that he should have been allowed to call a
Government investigator as a witness in order to testify about
Matthews’s statement concerning the existence of High Fry because
such “testimony would have corroborated Bolden’s testimony and
corrected the false impression that Bolden had invented Fry.”
(Appellant’s Br. at 20.) We conclude, however, that the district
court did not abuse its discretion in excluding testimony
concerning Matthews’s statement.
To the extent Thomas was offering Matthews’s statement to
prove the truth of the matter asserted, it was hearsay, see Fed.
R. Evid. 801, and did not qualify under any exception based on the
declarant’s unavailability. See Fed. R. Evid. 804. To the extent
the statement was being sought in order to prove that the
Government failed adequately to investigate other leads, any error
in excluding the statement was harmless. The motive of Matthews’s
statement was to explain his innocence by inculpating Thomas and an
unknown third man, High Fry. Thomas offers no theory for how
Matthews’s statement -- which essentially replaced Matthews’s
alleged role with High Fry and incriminated Thomas just the same --
could have possibly created reasonable doubt sufficient to acquit
Thomas. Accordingly, we hold that any error was harmless.
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V.
Thomas also challenges his sentence, arguing that the district
court erred in sentencing him as a career offender pursuant to U.S.
Sentencing Guidelines Manual § 4B1.1 after a Maryland court found
one of his prior convictions to be unconstitutional. We review de
novo the district court’s legal interpretations and its factual
findings for clear error. United States v. Caplinger, 339 F.3d
226, 235-36 (4th Cir. 2003).
Prior to sentencing, Thomas petitioned the Maryland courts to
vacate two 1992 armed robbery convictions to which he had pleaded
guilty in the same proceeding on December 15, 1992.* Thomas’s
Petition for Writ of Error Coram Nobis contended, inter alia, that
the convictions were constitutionally invalid because he was never
informed of and did not understand the charges to which he pleaded
guilty. The Circuit Court for Baltimore City recognized its
agreement with Thomas’s argument, noting that it did not believe
that a court “could make a determination that petitioner understood
the nature of the charges against him.” (J.A. at 311.)
Nonetheless, the court held that Thomas waived his right to
challenge the conviction and failed to show that the waiver was not
*
In addition to the 1992 convictions, Thomas had also been
convicted of armed robbery in 1983. Thomas did not contest the
validity of this 1983 conviction. Thus, even if Thomas’s two 1992
convictions -- to which he pleaded guilty in the same proceeding
-- were counted as a single offense, he would remain properly
classified as a career offender under U.S. Sentencing Guidelines
Manual § 4B1.1.
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intelligent and knowing. Accordingly, the court denied the
Petition.
At the outset, Thomas concedes that the district court would
have erred had it allowed him collaterally to attack his prior
Maryland conviction during his federal sentencing proceeding. See
Custis v. United States, 511 U.S. 485, 496 (1994) (holding that a
defendant may only collaterally attack a prior conviction used for
sentence enhancement if that attack is based on a conviction
obtained in violation of his right to counsel). Thomas, however,
contends that he was not seeking collaterally to attack his
conviction at sentencing. Rather, he argues that he had already
successfully attacked the conviction in Maryland court and the
district court erred in not recognizing that successful attack.
Thomas’s argument cannot prevail. “[A] sentencing court must
count a predicate conviction that has not been reversed, vacated,
or invalidated in a prior case, unless federal law or the
Constitution secures the defendant’s right to challenge the
conviction in the current sentencing proceeding . . . .” United
States v. Bacon, 94 F.3d 158, 161 (4th Cir. 1996) (emphases added).
The Maryland court did not reverse, vacate, or invalidate any of
Thomas’s prior convictions. Rather, the court denied his petition,
thus allowing the convictions to stand. Whether the state court’s
denial of the petition was based on substantive or procedural
grounds is immaterial in this case. Here, Thomas’s convictions
14
remained valid in the state of Maryland and the district court had
no discretion to ignore those convictions. Accordingly, the
district court did not err in sentencing Thomas as a career
offender.
VI.
In sum, we affirm Thomas’s convictions and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the Court and
argument would not aid the decisional process.
AFFIRMED
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