United States v. Seth Thomas

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4398
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SETH LINKOUS THOMAS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior
District Judge. (7:10-cr-00016-jct-1)
Argued: March 21, 2012 Decided: July 25, 2012
Before TRAXLER, Chief Judge, and KING and WYNN, Circuit Judges.
Affirmed in part, reversed in part, vacated in part, and
remanded by unpublished per curiam opinion.
ARGUED: Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellant. Thomas Ernest Booth, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Timothy J. Heaphy, United States Attorney, Donald R.
Wolthuis, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Roanoke, Virginia; Lanny A. Breuer, Assistant
Attorney General, Greg D. Andres, Acting Deputy Assistant
Attorney General, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Seth Thomas appeals his convictions and sentence for
multiple drug-related counts, raising several different issues.
We affirm one conviction, reverse two others, vacate Thomas’s
sentence, and remand for resentencing.
I.
In 2006 and 2007, the Smokey Ridge Apartments in
Christiansburg, Virginia, were a hotbed of illegal drug
distribution. Thomas did not live there, but he worked close by
and spent a lot of time there feeding his drug habit.
One of the main suppliers in the complex during that period
was Aaron Thompson. Thompson sold painkillers and pills almost
daily. He sold fentanyl patches less frequently, about once per
month. 1 Thomas also sold painkillers and pills to various
individuals in the apartment complex.
Thompson and Jennie Grissom were the primary drug suppliers
to Jimmy Clark, Clark’s girlfriend Whitney Branscom, and Clark’s
1
Fentanyl is a very powerful pain-relieving drug, about 50
to 100 times stronger than morphine, often prescribed to cancer
patients. Fentanyl comes in various forms, including gel
patches that are placed on the skin so that the medicine can
enter the bloodstream gradually over three days. Addicts,
however, sometimes remove the gel from the patch and eat it,
causing three days’ worth of the powerful medicine to enter the
body at once. The result can be respiratory depression, central
nervous system depression, and death.
3
neighbor Kenneth Ponder. Clark’s relationship with Thomas,
however, was more social. Thomas would visit Clark almost
daily, often sharing drugs with him. Thomas also sold drugs to
Clark a few times.
On the morning of November 28, 2007, Thomas asked Joseph
Haley, a friend and co-worker, for a ride to the apartments the
next morning because Thomas wanted to trade some percocet and
methadone pills for fentanyl patches. When Thomas arrived, he
went to Ponder’s apartment, which was a place where transactions
were regularly made. Thompson had acquired a batch of fentanyl
patches and brought them to the apartment. Thompson sold one
patch to Ponder and multiple patches to Thomas.
Leaving Ponder’s apartment together, Thomas and Thompson
walked several doors down toward Clark, who was sitting outside
his apartment. Thompson showed Clark 3-4 fentanyl patches, and
Thomas also displayed at least one patch. Clark, however, told
the men that he did not have any money. Thompson nevertheless
decided to sell Clark a patch on credit because Thompson knew
Clark’s girlfriend had a job and could pay him later.
Clark mixed the contents of the patch with alcohol,
injected the mixture intravenously through a syringe, and
promptly went into respiratory distress. Thomas called 9-1-1
and an ambulance came and transported Clark to the hospital,
where he was treated for a fentanyl overdose.
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Shortly after the ambulance arrived, Thomas called Haley to
ask for another ride, this time from Ponder’s apartment to the
home of Barry Duncan. Thomas told Haley that Clark had
overdosed, and when Haley picked up Thomas, Thomas started
trying to hide his patches in Haley’s car. Haley refused to
take them, however. Haley dropped Thomas off at Duncan’s house
in the late afternoon that same day.
Duncan, his fiancée Traci McDougal, and Amber Dalton were
at Duncan’s residence when Thomas arrived. They had already
heard about Clark’s fentanyl overdose. Thomas showed them his
remaining patches and told them he needed to get rid of them.
Although Duncan had no money, Thomas sold him one for $30 on
credit. McDougal then saw Thomas and Duncan enter the bathroom,
and she heard Thomas tell Duncan to lift his shirt so Thomas
could stick the patch on Duncan’s back. According to McDougal,
Thomas told Duncan he could cut the patch and eat the gel if the
patch did not stick. McDougal, Dalton, and Thomas then drove to
Dalton’s house while Duncan went with his father to a Lowe’s and
later to his parents’ house to have dinner.
When McDougal and Thomas arrived to pick up Duncan and
bring him back to Dalton’s house, Duncan was having difficulty
walking and talking. Duncan revealed that he had eaten some of
the gel because the patch would not stick. Then, back at
Dalton’s residence, Duncan could not stay awake. McDougal was
5
concerned and started to call 9-1-1, but Thomas grabbed her cell
phone and told her there was no need to call—that Duncan would
be fine. Eventually, McDougal put Duncan to bed. During the
night, Duncan died of a fentanyl overdose. When McDougal
discovered his condition the next morning, Dalton called 9-1-1.
While EMS personnel attempted to revive Duncan, Thomas told
Dalton not to say anything. Thomas also asked McDougal for the
money Duncan owed him for the patch.
A federal grand jury for the Western District of Virginia
subsequently returned an indictment charging Thomas with four
counts: conspiring with Thompson (from an unknown time until
November 29, 2007) to distribute fentanyl, resulting in death or
serious bodily injury (“Count One”); distributing or aiding and
abetting the distribution of fentanyl on November 28, 2007,
which resulted in serious bodily injury (“Count Two”);
distributing or aiding and abetting the distribution of fentanyl
on November 28, 2007, resulting in death (“Count Three”); and
distributing morphine on March 5, 2010 (“Count Four”). See 21
U.S.C.A. §§ 846, 841(a)(1), 841(b)(1)(C) (West 1999 & Supp.
2012); 18 U.S.C.A. § 2 (West 2000). Thomas pled guilty to
Count 4 and proceeded to trial on the remaining counts.
At the close of the government’s case in chief, Thomas
moved unsuccessfully for judgment of acquittal with regard to
each of the three counts. See Fed. R. Crim. P. 29. Thomas also
6
renewed his motion when the government put on rebuttal evidence.
The jury eventually returned a verdict of guilty on each count.
In calculating his advisory sentencing range under the
Guidelines, the district court grouped the three offenses, see
U.S. Sentencing Guidelines Manual § 3D1.2(d) (2010), and
employed a base offense level of 38. Over a defense objection,
the court added a two-point enhancement for obstruction of
justice. See U.S.S.G. § 3C1.1. With a total offense level of
40 and a criminal history category of III, Thomas’s advisory
guidelines range was 360 months to life. Ultimately, the court
sentenced Thomas to 300 months, stating that it would have
sentenced Thomas to 240 months but for the obstruction-of-
justice enhancement.
II.
Thomas first argues that the district court erred in
denying his motion for a judgment of acquittal on Count One. We
agree.
We review de novo the denial of a motion for judgment of
acquittal. See United States v. United Med. & Surgical Supply
Corp., 989 F.2d 1390, 1401-02 (4th Cir. 1993). When addressing
a sufficiency-of-the-evidence challenge, “[w]e must view the
evidence in the light most favorable to the government and
inquire whether any rational trier of fact could find the
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essential elements of the crime beyond a reasonable doubt.”
United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997).
In order to prove a conspiracy to distribute narcotics, the
government must establish that “(1) an agreement to possess with
intent to distribute [narcotics] existed between two or more
persons; (2) [the defendant] knew of the conspiracy; and (3)
[the defendant] knowingly and voluntarily became part of the
conspiracy.” United States v. Reid, 523 F.3d 310, 317 (4th Cir.
2008). The government may prove a conspiracy by circumstantial
evidence, including evidence of a “tacit or mutual
understanding” between the defendant and his accomplice. United
States v. Ellis, 121 F.3d 908, 922 (4th Cir. 1997) (internal
quotation marks omitted). Evidence showing a buyer-seller
relationship is not sufficient by itself to establish a drug-
distribution conspiracy. See United States v. Mills, 995 F.2d
480, 485 (4th Cir. 1993). However, “evidence of any
understanding reached as part of the buy-sell transaction that
either party will engage in or assist in further distribution is
sufficient to prove . . . a conspiracy.” United States v.
Edmonds, 2012 WL 1592978, at *5 (4th Cir. May 8, 2012).
Additionally, we have held that evidence of a continuing buyer-
seller relationship coupled with evidence of large quantities of
drugs, or “continuing relationships and repeated transactions”
8
can create a reasonable inference of an agreement. Reid, 523
F.3d at 317.
We agree with Thomas that the evidence in this case shows
only a buyer-seller relationship between Thomas and Thompson.
The government showed only that Thomas made one small purchase
of fentanyl patches from Thompson. It offered no evidence of an
ongoing relationship between the two. Besides the single
purchase, the only evidence linking Thomas and Thompson
concerned their proximity to one another during the one day when
the sales at issue in this case were made: After Thomas and
Ponder obtained their patches from Thompson, both Thomas and
Thompson walked straight toward Clark and offered to sell him
fentanyl patches.
The government contends that the evidence that Thomas may
have bartered with Thompson for fentanyl with Thomas’s own pills
as opposed to simply paying cash is evidence of a conspiratorial
relationship. However, we do not see how this fact is evidence
of a conspiracy. See United States v. Kincannon, 567 F.3d 893,
897 (7th Cir. 2009) (“An agreement to exchange drugs for money
(or something else of value) – the crux of the buyer-seller
transaction – is insufficient to prove a conspiracy.” (emphasis
added)).
The government also maintains that Thomas’s attempts to
find fentanyl buyers in Smokey Ridge and the fact that “Thomas
9
and Thompson jointly approached Clark and offered patches for
sale” is evidence of a conspiracy. Appellee’s brief at 14.
However, there was no basis for a reasonable inference that
Thomas’s attempts to identify people interested in purchasing
patches were for any purpose other than to sell the patches that
Thomas, himself, had purchased. That Thomas and Thompson may
have shopped their respective wares to Clark at the same time
does not give rise to a reasonable inference that they had
reached any agreement, tacit or otherwise. The district court
therefore erred in denying Thomas’s motion for a judgment of
acquittal on the conspiracy count.
III.
Thomas next maintains that the district court erred in
denying his motion for a judgment of acquittal on Count Two, in
which the government sought to prove that Thomas aided and
abetted Thompson’s distribution of a fentanyl patch to Clark.
We agree.
“To prove the crime of aiding and abetting the government
must show that the defendant knowingly associated himself with
and participated in the criminal venture.” United States v.
Winstead, 708 F.2d 925, 927 (4th Cir. 1983). Showing the
defendant’s mere presence at the scene of a crime is
insufficient. See United States v. Spoone, 741 F.2d 680, 686
10
(4th Cir. 1984). Rather, the government must “show some
affirmative participation which at least encourages the
principal offender to commit the offense.” United States v.
Kelly, 552 F.3d 824, 831 (D.C. Cir. 2009) (internal quotation
marks omitted).
The government maintains that Thomas assisted Thompson’s
distribution of fentanyl to Clark by purchasing fentanyl from
Thompson, offering to sell to Branscom, and approaching Clark
jointly with Thompson. As we have explained with regard to
Count One, however, there is no basis in the record for a
reasonable inference that Thomas’s actions were for any purpose
other than to facilitate his own sale of his own patches. Nor
does it even appear that Thomas’s actions regarding Clark
assisted Thompson in any way in making the sale.
IV.
Thomas next maintains that the district court abused its
discretion in refusing his requested aiding and abetting
instruction on Count Three, which pertained to the sale of a
fentanyl patch to Duncan. We disagree.
The defense theory at trial was that Duncan bought the
patch that killed him from Thompson at Smokey Ridge rather than
from Thomas at Duncan’s house. This theory was based on
testimony from Amber Dalton that Thomas and Duncan left the
11
house for 15 minutes before returning and going into the
bathroom together to stick the patch on Duncan’s back. Based on
this theory, the defense argued that Thompson’s distribution of
the patch to Duncan would have completed the crime and that one
cannot aid and abet an already-completed crime. Thus, Thomas
requested that the court instruct the jury that “[a] person
cannot be guilty of aiding or abetting a completed crime.” J.A.
563. The district court did not include this specific language
in its charge. However, the court instructed the jury:
In order to be found guilty of aiding and
abetting the . . . crimes charged in Counts Two and
Three . . . , the government must prove beyond a
reasonable doubt that the defendant:
One, knew that the crimes charged were to be
committed or were being committed;
Two, knowingly did some act for the purpose of
aiding the commission of that crime;
And, three, acted with the intention of causing
the crimes charged to be committed.
J.A. 472.
Because the court’s instruction explained that in order to
convict, the jury would need to find that Thomas “knew that the
crimes charged were to be committed or were being committed,”
the charge did not permit the jury to find that Thomas aided and
abetted after the completion of the crime. Thus, Thomas’s
request was effectively covered by the court’s instructions.
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V.
Thomas next contends that the district court abused its
discretion by denying his motion to exclude evidence that he
distributed drugs other than fentanyl and “ripped off” drug
purchasers.
Thomas moved unsuccessfully under Federal Rule of Evidence
404(b) to exclude any evidence that he had distributed drugs
other than fentanyl, such as morphine. However, the district
court overruled Thomas’s objections and allowed the admission of
such evidence. For example, co-worker Haley testified that
Thomas supplied him with pain pills in exchange for
transportation from time to time, and Steven West, a neighbor
who helped Clark after he overdosed on the fentanyl patch,
testified that Thomas sold him pain drugs 10-15 times in the six
months prior to the overdose. Thomas also moved unsuccessfully
to exclude evidence that he was a dishonest drug dealer. West
testified that he stopped buying drugs from Thomas because
Thomas “ripped [him and others] off on several occasions.” J.A.
118.
Even assuming arguendo that such evidence was erroneously
admitted, its admission was harmless as to Count Three. See
United States v. Forrest, 429 F.3d 73, 81 (4th Cir. 2005)
(explaining that the improper admission of evidence “is
harmless, if viewing the record as a whole, it is clear beyond a
13
reasonable doubt that the jury would have returned a verdict of
guilty absent the [improperly admitted evidence]” (internal
quotation marks omitted)). McDougal testified that she saw
Thomas agree to give Duncan the fentanyl patch on credit; she
then saw the two proceed into the bathroom; and she heard Thomas
in the bathroom explaining to Duncan about the patch as he
placed it on Duncan’s back. Ponder also testified that Thomas
admitted to him that Thomas gave the patch to Duncan.
Unlike McDougal, Dalton did not testify that she heard
Thomas agree to sell Duncan a patch, and, during closing
arguments, defense counsel made much of the fact that Dalton
testified that Thomas and Duncan left the house for 15 minutes
before returning and going into the bathroom together. Counsel
urged the jury to credit Dalton’s testimony and infer that in
that 15 minutes, Thomas drove with Duncan to Smokey Ridge, less
than a mile away, so that Duncan could purchase a patch from
Thompson. This theory of course begged the question of why
Thomas would not have simply sold Duncan one of the patches he
had shown to McDougal, Dalton, and Duncan. The defense argued
that those patches were for Thomas’s own use and that he would
not have wanted to part with them. That theory, however, was at
odds with another part of Dalton’s testimony in which she stated
that Thomas had been nervous because of Clark’s overdose and
that he had displayed his patches and said that he “needed to
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get rid of them.” 2 J.A. 222. In the absence of any viable
defense theory regarding Count Three, we conclude that Thomas
was not prejudiced by any error in the admission of the
complained-of evidence.
VI.
Thomas finally argues that the district court erroneously
enhanced his sentencing guidelines offense level for attempted
obstruction of justice. In light of our holding that the
district court erred in failing to grant Thomas’s motion for a
judgment of acquittal on Counts One and Two, we vacate Thomas’s
sentence and remand for resentencing. Nevertheless, for the
sake of judicial economy, we will address the obstruction-of-
justice issue.
We review a district court’s application of an obstruction-
of-justice enhancement for clear error. See United States v.
Blauvelt, 638 F.3d 281, 293 (4th Cir. 2011). We conclude that
the district court did not clearly err in applying the
enhancement.
Evidence presented at sentencing showed that Thomas was
jailed prior to trial with an inmate named Sean Robertson;
2
Indeed, Dalton testified that she assumed that Thomas and
Duncan were making some sort of drug deal when they went into
the bathroom together.
15
Robertson learned that his girlfriend Shameke Moore was on the
jury panel as a potential juror in Thomas’s case and revealed
this information to Thomas; and Thomas then suggested that
Robertson contact Moore and gave him suggestions to convince
Moore to adopt Thomas’s view of the case.
Robertson later called Moore, summarized the case against
Thomas, and explained why Moore should vote not guilty. He even
suggested that there might be some money in it for Moore. Moore
told Robertson that she was “onboard” and would vote in Thomas’s
favor. J.A. 634. Thomas subsequently followed up with
Robertson to see whether Moore would vote to acquit him.
Robertson told him that Moore had said that she would.
During jury selection, Moore did not reveal to the court
that she had discussed the case before or that she had a
personal interest in it even when specifically asked whether she
had read or talked to anyone about the case. Moore ended up not
being selected to serve on Thomas’s jury, however.
Under United States Sentencing Guidelines § 3C1.1, the
court must enhance the defendant’s offense level by two if it
finds that the defendant “willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice
with respect to the investigation, prosecution, or sentencing of
the instant offense of conviction.” Application Note 4(A)
specifically states that “unlawfully influencing a . . . juror,
16
directly or indirectly, or attempting to do so” is conduct that
qualifies for an obstruction enhancement. U.S.S.G. § 3C1.1 cmt.
n.4(A).
Thomas argues that since any attempt by him to influence
Moore was oral, rather than written, it was not unlawful because
it was not prohibited by 18 U.S.C.A. § 1504 (West 2000). The
government responds correctly, however, that regardless of
whether it was unlawful under § 1504, it clearly was unlawful
under 18 U.S.C.A. § 1503(a) (West 2000), which proscribes
“corruptly . . . endeavor[ing] to influence . . . any . . .
petit juror . . . in the discharge of his duty.”
Thomas suggests that the district court clearly erred in
finding that any attempt by him to influence Moore was corrupt.
Certainly, however, the evidence supported the conclusion that
Thomas attempted to use Robertson to persuade Moore to vote for
Thomas’s acquittal. That Thomas’s plan included the fact that
Moore would conceal Robertson’s overtures is simple common
sense. Without such concealment, after all, Moore clearly could
never be seated on the jury. The district court was thus on
firm ground in applying the enhancement.
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VII.
In sum, for the foregoing reasons, we reverse Thomas’s
convictions on Counts One and Two, affirm his conviction on
Count Three, vacate his sentence, and remand for resentencing.
AFFIRMED IN PART,
REVERSED IN PART,
VACATED IN PART,
AND REMANDED
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