United States v. Keith Thomas

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-1278
UNITED STATES OF AMERICA
v.
KEITH THOMAS,
Appellant
_____________________________________
On Appeal from the United States District Court for the
Western District of Pennsylvania
(District Court No.: 2-15-cr-00256)
District Court Judge: Honorable Cathy Bissoon
_____________________________________
Submitted under Third Circuit LAR 34.1(a)
on April 22, 2020
(Opinion filed: June 10, 2020)
Before: HARDIMAN, RENDELL and FISHER, Circuit Judges
_________
O P I N I O N*
_________
RENDELL, Circuit Judge:
Keith Thomas appeals his conviction of conspiracy to possess with intent to
distribute and distribute cocaine and possession with intent to distribute a substance
containing cocaine. He challenges the District Court’s denial of his motion to suppress,
the exclusion of evidence of his prior drug use, and the admission of prior convictions that
he argues were more than ten years old. Because we find that none of these issues warrant
reversal, we will affirm.
I. Background
In 2015, the FBI’s Safe Streets Task Force was investigating cocaine trafficking in
and around Pittsburgh under the leadership of Special Agent John Orlando. The Task Force
became aware of Appellant Keith Thomas through their investigation into distributor
Semori Wilson, which involved extensive surveillance as well as wiretaps. On October
16, 2015, Task Force officers watched Wilson meet up with his cocaine source, Domin
Guerrero-Guerrero, at an IHOP, and switch cars. Wilson drove Guerrero-Guerrero’s car
to Appellant Thomas’s house less than 15 minutes later and stayed for a few minutes. Later
that evening, Wilson drove Guerrero-Guerrero’s car to the hotel where Guerrero-Guerrero
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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was staying and where Guerrero-Guerrero had recently returned in Wilson’s vehicle.
Wilson parked, removed a bag from the back seat, and entered the hotel.
On October 23, 2015, Wilson called Thomas and said that he needed to talk with
him as soon as possible. When Thomas asked what it was about, Wilson said “Bro do we
do that?” Supp. App. 337. Later, Wilson told Thomas in a text message that he wanted to
see him about “that Mercedes,” a term Agent Orlando and Thomas both testified referred
to high-quality cocaine. App. 406, 540-41; Supp. App. 338. Thomas agreed to meet at
Wilson’s home in the early hours of October 24. Surveillance camera footage outside
Wilson’s home showed Thomas arrive, exit his vehicle, interact with Wilson briefly, and
then drive away.
On October 27, 2015, Thomas called Wilson and said he did not like one of the “two
logos” Wilson had sold him. Supp. App. 341. Thomas explained that “some of it isn’t
blockin all the way back up.” App. 254-55; Supp. App. 342. Agent Orlando understood
this to mean that Thomas was dissatisfied with cocaine Wilson sold him because it was not
finishing “in a block fashion” when he tried to cook it into crack. App. 408. Thomas later
confirmed the accuracy of this interpretation. Wilson said he would call the person who
sold him the cocaine to find a way to rectify the situation. On October 29, Thomas called
Wilson to remind him. When Wilson said he was forty minutes away, Thomas told him to
be sure to get in touch “cause this dude keep on callin me.” Supp. App. 347. The two
eventually met at Wilson’s house two days later, as confirmed by surveillance, but Wilson
had “[n]o [a]nswer yet” regarding the problematic cocaine. App. 160-61; Supp. App. 363.
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On November 1, Thomas again texted Wilson, asking him to “[c]all me asap.”
Supp. App. 366. Conversations between Wilson and another distributor revealed to
investigators that the men were receiving many similar complaints about the cocaine,
making it difficult to sell. Later on November 1, Wilson texted Thomas to ask whether he
was still having problems. Thomas replied that he was “doing it now” and would know in
two minutes. Supp. App. 368. Wilson said not to “go big just in case.” Id. Agent Orlando
understood this exchange to mean Thomas was attempting to cook the cocaine Wilson sold
him into crack, and Wilson was warning Thomas not to cook all of it so that he could refund
or exchange the rest if it was problematic. Thomas corroborated this interpretation.
On November 2, Wilson spoke with Guerrero-Guerrero about the cocaine. Wilson
said that Guerrero-Guerrero had sold him the “Mercedes” cocaine and “the can”—a term
for low-quality cocaine—with which customers were having problems. App. 411. The
next day, Wilson called Thomas to set up a meeting. When Thomas asked why, Wilson
asked if he had amnesia and said he wanted to “grab that” from Thomas. Supp. App. 369.
The two arranged an in-person meeting. From this exchange, Agent Orlando inferred that
Wilson was going to receive a new shipment of cocaine from which he could resupply
Thomas and that he wanted to gather and return the inferior cocaine.
This prompted Agent Orlando to obtain several search warrants, including a warrant
to search Thomas’s residence. Task Force officers searched Thomas’s residence on
November 3, 2015. They recovered multiple grams of both powder and crack cocaine, a
cutting agent, and mixing paraphernalia covered in cocaine residue and Thomas’s
fingerprints.
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In December 2015, Thomas was indicted for conspiracy to possess with intent to
distribute and distribute cocaine under 21 U.S.C. § 846 as well as one count of possession
with intent to distribute a substance containing a detectable amount of cocaine in violation
of 21 U.S.C. § 841(b)(1)(C). Thomas filed a motion to suppress the evidence found in his
house, arguing that Agent Orlando’s affidavit did not set forth probable cause. The District
Court held a hearing on July 20, 2018 and denied the motion.
The District Court also addressed several evidentiary issues. Thomas’s counsel
moved to introduce evidence of Thomas’s prior drug use to show that he was addicted to
cocaine and possessed cocaine only for personal use, but the government objected. The
District Court denied that motion on August 10. At the same August pretrial hearing, the
government argued that, should he testify, Thomas’s entire prior criminal record would be
admissible. Thomas argued in opposition that certain convictions were more than ten years
old, and their probative value did not substantially outweigh the risk of prejudice under
Federal Rule of Evidence 609. The District Court found that all the offenses fell within
the ten-year period but reserved its ruling until Thomas decided whether to testify. Thomas
filed a motion for reconsideration, and the Court held that, regardless of how the ten-year
period was calculated, the entire criminal record would be admitted.
Thomas was tried along with one co-defendant, Damien Gibson, in August 2018.
The evidence produced at trial showed the foregoing facts, relying heavily on surveillance
footage, recorded calls, and text messages. Agent Orlando and Pennsylvania State Police
Trooper Michael Warfield testified to interpret some of the language in the text messages
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and calls. Thomas also testified on his own behalf and was impeached with his prior
convictions. On August 27, 2018, the jury convicted Thomas on both counts.
II. Discussion
On appeal, Thomas raises three issues. Thomas challenges the District Court’s
denial of his motion to suppress evidence obtained pursuant to a search warrant he claims
was deficient. Next, he argues the District Court erred in prohibiting him from introducing
evidence of prior drug use to support his defense that the drugs in his home were for
personal use. Finally, Thomas contends the Court erred in allowing the government to
impeach him with prior criminal convictions that he argues fell outside the ten years
considered under Federal Rule of Evidence 609. We address each argument in turn.
A. Denial of Motion to Suppress
Thomas contends that the District Court erred in denying his motion to suppress
because the affidavit in support of the search warrant did not demonstrate probable
cause. We apply plenary review to the District Court’s assessment of the magistrate
judge’s probable cause determination. United States v. Stearn, 597 F.3d 540, 554 (3d Cir.
2010). We therefore must review whether the magistrate who issued the search warrant
“had a substantial basis for concluding that probable cause existed.” Id. (quoting Illinois
v. Gates, 462 U.S. 213, 238-39 (1983)). In assessing probable cause, a magistrate must
determine whether, based on the facts set forth in the affidavit, “there is a fair probability
that contraband or evidence of a crime will be found in a particular place.” Id. (quoting
Gates, 462 U.S. at 238); id. at 559.
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The affidavit here offered more than a substantial basis for the magistrate judge to
find a fair probability that contraband would be found in Thomas’s house. The affidavit
specified that the address was Thomas’s residence and that Thomas was a suspected
cocaine dealer who received his supply of cocaine from Wilson. It specifically noted that
Wilson had gone to Thomas’s address after exchanging vehicles with his cocaine source,
Guerrero-Guerrero, and that, immediately after leaving Thomas’s house, Wilson took a
large bag to Guerrero-Guerrero. The affidavit detailed the repeated conversations between
Thomas and Wilson using coded language associated with the cocaine trade and
correspondence showing plans to meet up on November 3 for Wilson to provide another
supply. These facts established a fair probability that Thomas was purchasing cocaine from
Wilson, that Wilson had delivered cocaine to Thomas’s house, and that evidence of drug
trafficking would be at the house. The magistrate judge thus properly determined that the
affidavit was supported by probable cause, and the District Court rightly denied the motion
to suppress.
B. Exclusion of Evidence of Prior Drug Use
Thomas also argues that the District Court abused its discretion by excluding
evidence of prior drug use that he hoped would show he possessed cocaine only for
personal use. We review the evidentiary rulings of the District Court for abuse of
discretion. United States v. Green, 617 F.3d 233, 239 (3d Cir. 2010). To the extent the
ruling is based on a legal interpretation of the Federal Rules of Evidence, we exercise
plenary review over questions of law. Id. A district court has “wide discretion in
determining the admissibility of evidence under the Federal Rules,” including “weighing
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any factors counseling against admissibility.” United States v. Freeman, 763 F.3d 322,
342 n.8 (3d Cir. 2014) (citation omitted). We “will not disturb a trial court’s exercise of
discretion unless no reasonable person would adopt the district court’s view.” United
States v. Starnes, 583 F.3d 196, 214 (3d Cir. 2009) (citation omitted).
The District Court here was perfectly reasonable in determining that the evidence
Thomas proposed should not be admitted. To show that he possessed cocaine only to feed
his personal addiction, Thomas sought to introduce a letter from a rehabilitation center
showing that he was admitted for treatment for cocaine dependency in 2010 but absconded
after a short period. He also sought to admit documents from the Probation Office that
demonstrated he tested positive for substances other than cocaine while awaiting trial in
2015 and that he self-reported using cocaine. This evidence did little to demonstrate that
Thomas was addicted to or using cocaine at the time of the offense. The District Court
emphasized the lack of evidence that Thomas was a current cocaine user and found the
positive tests for different controlled substances to be “irrelevant and inadmissible.” App.
41. The Court similarly ruled that the letter from the rehabilitation facility was “too
remote” and lacked relevance to activity five years later. Id. The letter and the information
about pre-trial drug use were further unnecessary because the government did not dispute
the fact that Thomas was addicted to or used cocaine. The District Court therefore did not
abuse its discretion in excluding the evidence. 1
1
Even if the Court had erred in excluding the evidence, any error was harmless. Thomas
testified to the same facts about his cocaine addiction and continued use. Given that he
had the chance to present the excluded evidence through testimony, and the government
did not dispute his account, any error in excluding the evidence was harmless. See
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C. Admission of Prior Criminal Convictions
Finally, Thomas argues that the District Court abused its discretion by allowing the
government to impeach his credibility with convictions that occurred more than ten years
prior to the trial without finding that their probative value substantially outweighed the risk
of prejudice as required under Federal Rule of Evidence 609(b). As noted above, we
review the evidentiary rulings of the District Court for abuse of discretion but exercise
plenary review over questions of law to the extent the ruling is based on a legal
interpretation of the Federal Rules of Evidence. Green, 617 F.3d at 239. Here, any error
in the District Court’s legal interpretation of the rules was harmless, so we will affirm.
Federal Rule of Evidence 609 permits the admission of evidence of prior criminal
convictions for the purpose of attacking a witness’s credibility. Fed. R. Evid. 609. In
general, a crime punishable by more than a year of imprisonment must be admitted to attack
a defendant-witness’s credibility if its probative value outweighs its prejudicial effect. Fed.
R. Evid. 609(a)(1)(B). Rule 609(b), however, imposes a limit for convictions older than
ten years. Specifically, “subdivision (b) applies if more than 10 years have passed since
the witness’s conviction or release from confinement for it, whichever is later. Evidence of
the conviction is admissible only if . . . its probative value, supported by specific facts and
circumstances, substantially outweighs its prejudicial effect.” Fed. R. Evid. 609(b)(1)
(emphasis added).
United States v. Greenspan, 923 F.3d 138, 149-50 (3d Cir. 2019); see also United States
v. Hughes, 970 F.2d 227, 234 (7th Cir. 1992).
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The government sought to introduce several of Thomas’s prior convictions under
Rule 609(a)(1)(B), including September 2005 convictions for receiving stolen property,
giving false reports to law enforcement, and giving false identification to law enforcement,
and a 2007 conviction for unauthorized use of a motor vehicle. Thomas argued in
opposition that the 2005 and 2007 convictions were inadmissible under Rule 609(b)
because more than ten years had passed, and the probative value of the convictions did not
substantially outweigh their prejudicial effect. The government responded that, although
more than ten years had passed at the time of the 2018 trial, because the 2005 and 2007
convictions occurred within ten years of when the conspiracy offense began in June 2015,
they were not barred by Rule 609(b) and should be admitted.
The District Court agreed with the government, holding that the convictions fell
within the ten-year period. When Thomas moved for reconsideration, the District Court
denied his motion, stating:
For the reasons outlined by the government in its response, all of which are
incorporated herein by reference, the Court finds that the convictions at issue
fall within the relevant 10 year period under Rule 609. Moreover, even if
Defendant Thomas’s analysis was correct, given the type of crimes at issue
(crimes involving dishonesty and motives to avoid prosecution), when the
convictions did occur if analyzed under Defendant Thomas’s rubric (not
significantly beyond the 10 years set forth in Rule 609) and the importance
of the credibility of the Defendant (great importance), the Court finds that
the probative value of using these convictions for the purposes of
impeachment outweighs any prejudicial effect.
App. 871-72.
The government now urges us to measure Rule 609(b)’s ten-year period from the
date of the alleged offense or the date of the indictment. Such an early date has not typically
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provided the end point for Rule 609(b)’s ten-year period in this Court or other circuits. 2
We have previously assumed that the relevant inquiry under Rule 609(b) is whether the
date of conviction or release occurred “more than ten years prior to trial.” United States v.
Williams, 892 F.2d 296, 299, 301 (3d Cir. 1989), superseded by statute on other grounds
as indicated in Stinson v. United States, 508 U.S. 36, 39 n.1 (1993). Numerous other
circuits have viewed the ten-year period the same way. See United States v. Stoltz, 683
F.3d 934, 939 (8th Cir. 2012) (counting the ten-year period from the date of trial); United
States v. Peatross, 377 F. App’x 477, 492 (6th Cir. 2010) (date of testimony); United States
v. Nguyen, 542 F.3d 275, 278, 280-81 (1st Cir. 2008) (date of trial); United States v.
Thompson, 806 F.2d 1332, 1339 (7th Cir. 1986) (date of trial). But see United States v.
Lorenzo, 43 F.3d 1303, 1308 (9th Cir. 1995) (date of indictment); United States v. Foley,
683 F.2d 273, 277-78 (8th Cir. 1982) (date of offense).
We need not resolve the dispute about the correct date from which to measure Rule
609(b)’s ten-year period, however, because any error was harmless. We must assess
“whether the error itself had substantial influence” on the jury. Gov’t of V.I. v. Bedford,
671 F.2d 758, 761-62 (3d Cir. 1982) (quoting Gov’t of V.I. v. Toto, 529 F.2d 278, 283 (3d
Cir. 1976)). “Unless there is a reasonable possibility that [the error] contributed to the
2
We also note that measuring from the date of the offense or the indictment presents
certain logical challenges. Rule 609(b)’s focus is impeachment of a witness’s credibility
when testifying, not at the time of the offense or indictment. Further, the Rule applies to
any trial witness, not exclusively criminal defendants, and is therefore relevant in cases
where there is no offense or indictment date. As explained below, however, we need not
confront these issues today.
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conviction, reversal is not required.” United States v. Zarintash, 736 F.2d 66, 72 (3d Cir.
1984) (alteration in original) (internal quotation marks and citation omitted).
Here, there is no reasonable possibility that the error contributed to the jury’s
decision to convict because the evidence of Thomas’s guilt was overwhelming. At trial,
the government introduced numerous recorded phone calls and text messages, surveillance
footage, and the testimony of officers regarding their investigation of the conspiracy.
Thomas himself chose to testify—apparently undeterred by the Court’s decision to admit
evidence of his convictions—and corroborated the officers’ interpretations of his text
messages and calls as drug-related. He admitted to possessing powder and crack cocaine
that he purchased from Wilson as well as the other items recovered from his house.
Thomas admitted to cooking the crack and periodically distributing drugs to friends. This
testimony, in combination with the recorded calls, text messages, and surveillance footage,
provided overwhelming evidence on which the jury could convict Thomas. Any error in
the admission of the 2005 convictions for receiving stolen property, giving false reports to
law enforcement, and giving false identification to law enforcement and the 2007
conviction for unauthorized use of a motor vehicle was harmless error.
III. Conclusion
Because none of the issues Thomas has raised warrant reversal, we will affirm.
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