United States v. Blair Thomas, Jr.

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-1360
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UNITED STATES OF AMERICA
v.
BLAIR THOMAS, JR.,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal Action No. 2-14-cr-00096)
District Judge: Honorable Gerald A. McHugh
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Submitted Under Third Circuit L.A.R. 34.1(a)
March 13, 2017
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Before: GREENAWAY, JR. and SHWARTZ, Circuit Judges, and
SIMANDLE, Chief District Judge.
(Filed: July 18, 2017)
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OPINION**
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
The Honorable Jerome B. Simandle, Chief Judge of the United States District
Court for the District of New Jersey, sitting by designation. Judge Simandle assumed
senior status on June 1, 2017.
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.
After a four-day federal jury trial, Blair Thomas, Jr. was convicted of multiple
robbery and firearm counts. On appeal he argues that the District Court erred in denying
both his motion for a mistrial and his motion to suppress physical evidence. He also
argues that his convictions for using and carrying a firearm during a crime of violence are
invalid. For the reasons that follow, we will affirm the District Court’s judgment of
conviction.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Factual Background
1. Attempted Robbery of the Yeadon Post Office
On the morning of January 22, 2014, a man entered the post office in Yeadon,
Pennsylvania. The post office was empty, save for a postal clerk at the counter. When
the man walked up to the counter, the postal clerk noticed a waxy, tan substance covering
the man’s face, along with a mustache, a pair of glasses, and a hat.
The man then demanded ten $1,000 money orders, and presented the clerk with a
note saying that he had a gun. The clerk bolted out of the post office, not knowing “if
there was a gun or not.” SA 8. The man left, empty-handed. Surveillance cameras
captured images of the man.
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2. Attempted Robbery of the Darby Post Office
Later that same morning, a man entered the post office in Darby, Pennsylvania, a
town neighboring Yeadon. This man also wore a tan mask, in addition to a grey hooded
sweatshirt and grey sweatpants.
He approached the counter and demanded $10,000 in money orders. When the
clerk asked for identification, the man lifted up his shirt, pulled out a gun, and pointed it
at the clerk. The clerk was “petrified.” SA 25. But a customer and a postal carrier soon
entered the lobby and the man fled.
3. Robbery of the Wells Fargo Bank
The next morning, a man in a tan mask, a pair of sunglasses, and a hat entered a
Wells Fargo Bank in Springfield, Pennsylvania, a town in the same county as Yeadon and
Darby.
He handed a note to the greeter at the door, announcing that this was a robbery.
The man then demanded that the tellers put money in his duffel bag and escort him to the
bank vault. The tellers stuffed some bills in the duffel bag but refused to take him to the
bank vault. Security cameras captured the robbery.
4. The Investigation
Sean McStravick, the postal inspector assigned to investigate the robberies, rolled
the three crimes into one investigation. Based on an anonymous tip, McStravick
contacted Jeremy Oneail, owner of an online mask making company. Oneail recognized
the mask on both the Yeadon Post Office robber and the bank robber as the “Raj” mask.
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His transaction records showed that on December 29, 2013, he sold one of his masks—a
Raj mask—to “Blair Thomas, 136 Hirst Ave., Landsowne, Pennsylvania.” SA 296–297.
McStravick used this information to obtain a federal search warrant.
About a week after the attempted robbery of the Yeadon Post Office, postal
inspectors executed a warrant at the 136 Hirst Avenue residence.1 A black BMW
approached the residence at the same time as the inspectors. One of the inspectors, Rick
Link, approached the BMW and yelled “Police, let me see your hands.” SA 253. The
driver did not comply. Link then saw the driver’s arm move down toward the gearshift.
He feared that the driver would run him over.2 The car moved, according to Link, about
three to five feet before it stopped. Another postal inspector then pulled the driver from
his seat. The driver was Blair Thomas, Jr.
The postal inspectors arrested Thomas and removed the following items from the
house: (1) a United States Postal Service box containing a mask from Oneail’s company;
(2) a .45 caliber Ruger semi-automatic pistol with two magazines, one inside the weapon
with seven rounds; (3) a black knit hat; (4) grey sweatpants; and (5) $3,000 in cash. The
postal inspectors also removed a grey hooded sweatshirt, a pair of grey sweatpants, three
pairs of sunglasses, and a notebook from the black BMW, pursuant to a warrant. The
1
The postal inspectors later verified that this was the residence of Thomas’s
mother. This was also the address listed on Thomas’s driver’s license.
2
The defense objected during this portion of Link’s testimony but the District
Court held that Link could testify to what he feared.
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imprinted handwriting on the cover of the notebook read “This is a robbery. I have a
gun. Stay calm and print ten money orders, $1,000.” SA 278.
Meanwhile, Thomas waived his right to remain silent at the police station and
agreed to speak with the postal inspectors. He wrote a confession, admitting to the
following: he committed the two attempted robberies at the post offices and the robbery
at the bank; he bought the Raj mask online using PayPal; he used the mask and the gun
located at the 136 Hirst Avenue residence in the robberies; and he used the mask in all of
the robberies, but only used the gun at the post offices.
B. Procedural History
A grand jury returned a six-count indictment charging Thomas with two counts of
attempted robbery of a postal employee, in violation of 18 U.S.C. § 2114(a); two counts
of using and carrying a firearm during a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1); one count of bank robbery, in violation of 18 U.S.C. § 2113(a); and one
count of possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1).
The District Court on the eve of trial denied Thomas’s motion to suppress both the
evidence seized from the 136 Hirst Avenue residence and the black BMW as well as the
written, signed confession.
At trial, the jury heard testimony from, among others, the postal clerks and bank
employees whom Thomas had threatened, Oneail, McStravick, Link, a third postal
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inspector involved in the investigation, and a forensics expert. McStravick also read
Thomas’s written confession into the record.
Before closing arguments, the government requested a jury instruction regarding
consciousness of guilt, based on the testimony that Thomas initially disregarded Link’s
command and that the black BMW rolled toward Link. The District Court denied the
request, and the prosecutor made no mention of the BMW rolling toward Link in her
closing argument.
But the defense counsel did dwell on the testimony that the BMW rolled forward,
albeit couching the significance of the testimony by saying it did not “really make a
difference in the overall case itself.” App. 305. She went on to challenge Link’s and
McStravick’s accounts of the BMW rolling forward by saying “[t]hat’s not what
happened. That’s not what happened. But why try to infuse that into this case. We
know it didn’t happen. You know why it didn’t happen . . . .” App. 306. And she
explained why the testimony was “just irresponsible”:
You can’t do that in a case like this. Why? Why? Why when the government
says they’ve got a mountain of evidence over here do they have to then infer that
that young man was just trying to hurt a police officer? That’s just—it’s just not
right.
App. 307.
In rebuttal, the prosecutor responded to the defense counsel’s characterization of
the incident:
And with regard to the testimony from . . . Inspector Link and Inspector
McStravick about the car, there has been no evidence to suggest anything different
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other than their testimony. So I ask you, ladies and gentlemen, to use your
common sense like you would every day and evaluate their testimony because the
defense has not presented any evidence and you haven’t seen any evidence that
shows anything different about what happened. [Defense counsel] said we know
that’s not what happened. Well, how do we know that without evidence?
App. 310 (emphasis added).3
This prompted the defense counsel to request a meeting at sidebar. The trial judge
told the prosecutor that he was “going to instruct the jury to disregard that” and that he
will “reserve judgment on this later.” App. 310. The prosecutor then attempted to
explain to the jury what she meant:
Ladies and gentlemen, my comments about the defense presenting evidence, if I
could, I just want to finish that the argument that that didn’t happen, [defense
counsel’s] argument that we all know that that’s not happened, my comments were
meant that that was argument and that you all did not hear evidence suggesting
that that’s not what happened.
App. 311 (emphasis added).
The Court then addressed the jury briefly:
[A]ny suggestion that the defense needs to put on evidence should be completely
disregarded by you during your deliberations. I want to make that clear. The
defense has zero, and I repeat zero, obligation to present any evidence on any issue
before this jury.
Id. Following this instruction, the prosecutor attempted to further clarify what she meant:
“Once again, my comments were meant so that that was argument and not evidence. So,
again, there was no evidence to show anything other than what the agents told you about
what happened with the car.” App. 311–312 (emphasis added). The prosecutor then
returned to her rebuttal presentation.
3
The defense did not present any evidence.
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Before the jury began deliberation, the trial judge reiterated the burden of proof:
I want to emphasize one more time the defense has zero obligation to present any
evidence with respect to any element or any accusation in this case or in any case.
The burden is always, and I repeat, always with the government to prove to your
satisfaction with proof beyond a reasonable doubt every element of every offense.
App. 321.
The defense then orally moved for a mistrial, arguing that the government
impermissibly shifted the burden of proof and that the judge’s limiting instruction was
insufficient. The judge took the matter under advisement. The jury returned a verdict
later that day: guilty on all counts. The jury also concluded that Thomas brandished a
firearm during the attempted robbery of the Darby Post Office.
The defense filed a mistrial motion about a week later. The Court denied it,
finding that although the prosecutor’s comments were improper, the error was harmless.
Thomas’s timely appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). “We review a district
court’s decision not to grant a mistrial on the grounds that the prosecutor made improper
remarks in closing argument for abuse of discretion, and, if error is found, we apply
harmless error analysis.” United States v. Molina-Guevara, 96 F.3d 698, 703 (3d Cir.
1996) (internal citations omitted). We review the District Court’s determination that an
offense is not a crime of violence, as required for conviction under § 924(c), for plain
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error because Thomas did not raise any objections below. See United States v. Robinson,
844 F.3d 137, 140 (3d Cir. 2016). And we review the District Court’s determination on a
motion to suppress evidence “for clear error as to the underlying factual findings” and we
“exercise[] plenary review of the District Court’s application of the law to those facts.”
United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002).
III. ANALYSIS
On appeal, Thomas provides three reasons why we should vacate his conviction
and sentence and remand to the District Court for a new trial. First, he claims that the
District Court erred when it denied his motion for mistrial based on the prosecutor’s
remarks in her rebuttal argument. Second, he argues that his convictions pursuant to 18
U.S.C. § 924(c) should be overturned because the predicate offense for each conviction,
attempted postal robbery, as defined by 18 U.S.C. § 2114(a), does not qualify as a “crime
of violence.” Finally, Thomas contends that the District Court erred when it denied his
motion to suppress the physical evidence that the postal inspectors seized during the
search of his mother’s home.
A. The District Court Did Not Abuse Its Discretion When It Denied the
Motion for a Mistrial
Thomas argues that the prosecutor improperly shifted the burden of proof when
rebutting defense counsel’s argument. This burden shift, according to Thomas, unfairly
prejudiced him because “his defense depended on the jury’s proper understanding of the
burden of proof.” Appellant’s Br. at 18. As a result, the District Court should have
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granted a mistrial, according to Thomas, because the jury may not have deliberated
sufficiently, “especially on Count II” (using a firearm in the commission of the Yeadon
Post Office attempted robbery). Appellant’s Br. at 18. We disagree. The District Court
did not abuse its discretion in denying Thomas’s motion for a mistrial.
To determine whether the District Court erred by failing to grant a mistrial, we
look to “the scope of the improper comments in the overall trial context, the effect of any
curative instructions given, and the strength of the evidence against the defendant.”
United States v. Mastrangelo, 172 F.3d 288, 297 (3d Cir. 1999).
As a threshold matter, it is debatable whether these remarks even constituted
impermissible burden shifting. In context, it appears that the prosecutor attempted to
undercut the defense counsel’s argument—that McStravick and Link mischaracterized
the details of Thomas’s arrest—by pointing out that there was no evidence to support this
argument. But even if these remarks constituted impermissible burden shifting, we
conclude that Thomas fails to establish the three Mastrangelo factors.
First, the remarks pertained to a collateral issue—what McStravick and Link
perceived when they arrested Thomas. This testimony is collateral because whether it
happened does not establish or disprove an element of Thomas’s charged offenses. The
testimony’s absence from the government’s closing argument, and the defense counsel’s
disclaimer that this testimony “doesn’t really make a difference in the overall case itself”
further show that this testimony is collateral. Thus, the first Mastrangelo factor— “the
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scope of the improper comments in the overall trial context”—cuts in favor of the
government. Id. at 297.
Next, we conclude that the District Court’s immediate curative instruction was
sufficient. “[W]e presume that the jury will follow a curative instruction unless there is
an ‘overwhelming probability,’ that the jury will be unable to follow it and a strong
likelihood that the effect of the [statement] would be ‘devastating,’ to the defendant.”
United States v. Newby, 11 F.3d 1143, 1147 (3d Cir. 1993) (quoting Greer v. Miller, 483
U.S. 756, 766 n.8 (1987)). No such overwhelming probability exists here, thus, we
conclude that the second Mastrangelo factor—“the effect of any curative instructions
given”—cuts in favor of the government. Mastrangelo, 172 F.3d at 297.
Finally, we conclude that the third Mastrangelo factor—“the strength of the
evidence against the defendant”—cuts in favor of the government. Id. We agree with the
District Court that “the evidence suggestive of [Thomas’s] guilt in this case was
overwhelming”—extensive witness testimony, physical evidence, and a written
confession. App. 21 n.1. The prosecutor’s remarks in her rebuttal did not prejudice
Thomas.
After considering the context of the prosecutor’s remarks, the District Court’s
curative instruction, and the overall strength of the evidence against Thomas, we hold
that the District Court acted within its discretion when it rejected Thomas’s mistrial
motion.
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B. Attempted Robbery of a Postal Employee is a Crime of Violence When
Contemporaneously Tried With § 924(c)
Thomas argues that the convictions pursuant to 18 U.S.C. § 924(c) are invalid
because the predicate offense for both convictions—attempted postal robbery, as defined
by 18 U.S.C. § 2114(a)—is not a crime of violence. We review this ruling for plain error,
and we find no such error here.
Thomas was indicted and convicted pursuant to 18 U.S.C. § 924(c), which
provides that “any person who, during and in relation to any crime of violence . . . , uses
or carries a firearm, or who, in furtherance of any such crime, possesses a firearm,”
violates § 924(c). Section 924(c) goes on to define a “crime of violence” as a felony that:
“(A) has as an element the use, attempted use, or threatened use of physical force against
the person or property of another”; or “(B) . . . by its nature, involves a substantial risk
that physical force against the person or property of another may be used in the course of
committing the offense.” 18 U.S.C. § 924(c)(3)(A)-(B).
Generally, when courts determine whether a crime is a crime of violence, they
compare the elements of the predicate offense to the definition of “crime of violence,” in
what is referred to as the categorical approach. See Taylor v. United States, 495 U.S. 575
(1990). But the categorical approach is not necessary in cases where the “predicate
offense . . . and the § 924(c) offense are contemporaneous and tried to the same jury.”
Robinson, 844 F.3d at 141.
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This is so because “[t]he jury’s determination of the facts of the charged offenses
unmistakably shed light on whether the predicate offense was committed with ‘the use,
attempted use, or threatened use of physical force against the person or property of
another.’” Id. Thus, “analyzing a § 924(c) predicate offense in a vacuum is
unwarranted” and “[t]he remedial effect of the ‘categorical’ approach is not necessary.”
Id. at 141, 143.
Here, the charging document establishes that Thomas’s predicate offenses—
attempted robbery of a postal employee—and the § 924(c) offenses—using and carrying
a firearm—occurred contemporaneously. And the District Court instructed the jury that
the crime of robbery of a postal employee required that the defendant “put the life of a
postal employee . . . in jeopardy by use of a dangerous weapon.” SA 399. There is no
need to opine on whether Thomas’s hypotheticals could provide a basis for conviction
under § 2114(a) because the jury had an adequate factual basis to conclude that
§ 2114(a), committed while using and carrying a firearm, is a crime of violence.
Accordingly, we will affirm Thomas’s § 924(c) convictions.
C. Law Enforcement Lawfully Obtained Thomas’s Personal Information
from Oneail
Thomas contends that the postal inspectors relied on a defective search warrant to
search his mother’s residence because it was premised on illegally-obtained evidence
seized from a third party. We disagree.
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At the outset, it bears mentioning that Thomas agrees that the current precedent
“requires that the individual challenging the search have a reasonable expectation of
privacy in the property searched . . . and that he manifest a subjective expectation of
privacy in the property searched[.]” United States v. Kennedy, 638 F.3d 159, 163 (3d Cir.
2011) (alteration in original) (citation omitted); Appellant’s Br. at 53. The Supreme
Court “consistently has held that a person has no legitimate expectation of privacy in
information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. 735,
743–44 (1979).
Applying the third party doctrine in this case is straightforward. Thomas provided
a third party—Oneail—with his name, address, and certain financial information when he
purchased the Raj mask. In so doing, Thomas abandoned his privacy interest in this
information because he “assumed the risk that the information would be divulged to
police.” Id. at 745.
Nonetheless, Thomas argues that the third party doctrine “should be overruled
given the heightened concerns for privacy in the digital age and in light of Justice
Sotomayor’s concurring opinion in United States v. Jones, 565 U.S. 400 (2012).”
Appellant’s Br. at 53. At present, we are bound by the third party doctrine articulated in
Smith and therefore affirm.
IV. CONCLUSION
For the reasons set forth above, we will affirm the District Court.
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