United States v. Jody Thomas , 419 F. App'x 469 ( 2011 )

Case: 10-50174 Document: 00511419673 Page: 1 Date Filed: 03/22/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 22, 2011
No. 10-50174
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
JODY CHARLES THOMAS, also known as Capone,
Defendant–Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:09-CR-94-1
Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Following a jury trial, Jody Charles Thomas was convicted on multiple
counts related to various drug activities, money laundering, bank fraud, identity
theft, and witness retaliation. He was sentenced to a total of 504 months of
imprisonment.
Thomas first argues that the evidence was insufficient to support his
convictions for conspiracy to possess with intent to distribute crack cocaine and
for multiple counts of maintaining a place for drug activity. He also argues that,
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 10-50174
because the evidence was insufficient, he was denied due process. Because he
sufficiently preserved this claim in the district court, we review de novo. See
United States v. Percel, 553 F.3d 903, 910 (5th Cir. 2008). We will uphold the
jury’s verdict if a reasonable trier of fact could conclude from the evidence that
the elements of the offense were established beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Percel, 553 F.3d at 910. However,
we do “not weigh evidence or assess the credibility of witnesses.” United States
v. Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008).
Thomas argues that the evidence was insufficient because it consisted of
the uncorroborated testimony of various unreliable co-conspirators. We have
repeatedly held that “a defendant may be convicted based upon the
uncorroborated testimony of a co-conspirator.” United States v. Rasco, 123 F.3d
222, 229 (5th Cir. 1997). We will uphold a verdict on this basis “even if the
witness is interested due to a plea bargain or promise of leniency, unless the
testimony is incredible or insubstantial on its face.” United States v. Bermea, 30
F.3d 1539, 1552 (5th Cir. 1994).
Thomas does not argue that the testimony of any of the witnesses was
incredible or insubstantial on its face. Cf. Bermea, 30 F.3d at 1552. Thomas’s
argument, that his case is different because the Government presented no other
tangible evidence, is essentially an argument that the Government failed to
present any corroborating evidence. To the extent Thomas is suggesting our
prior caselaw is incorrect, absent an intervening en banc or Supreme Court
decision, one panel of this court may not overrule a prior panel’s decision. See
Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999). Thomas’s
challenge to the credibility of these witnesses also fails because we decline to
reassess the credibility of witnesses. See Ramos-Cardenas, 524 F.3d at 605.
Thomas also challenges his conviction for money laundering. He again
argues that he was denied due process because the evidence was insufficient as
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No. 10-50174
it was based on the uncorroborated testimony of his alleged accomplices.
Thomas also asserts that evidence showing that he made cash payments for real
estate and that he made large bank deposits is insufficient to sustain his
conviction in light of his other legitimate sources of income. To the extent
Thomas is challenging the credibility of the Government’s witnesses, for the
reasons discussed above, we decline to reweigh the jury’s determination that the
Government’s witnesses were credible. See Ramos-Cardenas, 524 F.3d at 605.
Thomas’s assertion that he had other “legitimate” income that explained the
source of these funds also comes down to a credibility determination for the jury.
See id. To the extent Thomas is arguing that he was convicted only on the
uncorroborated testimony of the witnesses, this claim also fails. See Rasco, 123
F.3d at 229.
Thomas also was convicted on three charges related to witness
intimidation. On appeal, he asserts that there was no evidence to show that
these actions were done at his behest. However, the Government presented
testimony that Thomas had boasted in jail that he sent his cousins to shoot at
a person who he thought was an informant. During a search that same day,
police also found a piece of paper marked “DEA list” with the name of the
targeted witness circled. In addition, one of the perpetrators testified that he
and several other men were attempting to frighten a possible witness in order
to prevent him from testifying against Thomas.
Thomas has not shown that a reasonable trier of fact could not conclude
that the elements of his various offenses were established beyond a reasonable
doubt. See Jackson, 443 U.S. at 319; Percel, 553 F.3d at 910. As he has not
shown that the evidence was insufficient, Thomas also has not shown that his
convictions violated due process. See Jackson, 443 U.S. at 316.
AFFIRMED.
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