United States v. Thomas, Clarence

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 7, 2008
Decided July 7, 2008
Before
RICHARD D. CUDAHY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 07-4027
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Illinois.
v. No. 06CR30117-002-GPM
CLARENCE THOMAS G. Patrick Murphy,
Defendant-Appellee. Judge.
ORDER
In the summer of 2006 two men covered their faces with nylon stockings and, at
gunpoint, stole about $27,000 from the Granite City Steel Federal Credit Union in Granite
City, Illinois. Granite City authorities could not find the men until they got a lead eleven
days later when police in nearby Alton, Illinois, arrested Bonnie Brown after a similar
robbery of a credit union. Brown admitted being a driver for both robberies and identified
Montez Fuller, her former boyfriend, and Clarence Thomas, Fuller’s uncle, as the men who
robbed the credit union in Granite City. Thomas and Fuller were tried separately, and both
were convicted of armed bank robbery. See 18 U.S.C. § 2113(a), (d). Thomas filed a notice
of appeal, but his appointed lawyer moves to withdraw under Anders v. California, 386 U.S.
738 (1967), because he cannot discern any nonfrivolous ground for appeal. Thomas
No. 07-4027 Page 2
accepted our invitation to respond to his lawyer’s submission. See C IR. R. 51(b). Limiting
our review to the potential issues identified in counsel's supporting brief and Thomas’s
submission, see United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002), we grant
counsel's motion and dismiss the appeal.
In his Anders submission counsel first considers challenging the sufficiency of the
evidence. But in evaluating a sufficiency claim, we would view the evidence in the light
most favorable to the prosecution and affirm if “any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319 (1979); see also United States v. Sachsenmaier, 491 F.3d 680, 683 (7th Cir. 2007). As we
have said, this “highly deferential standard is nearly insurmountable.” United States v.
Mendoza, 510 F.3d 749, 752 (7th Cir. 2007) (internal quotation marks and citations omitted).
The strongest evidence against Thomas came from Bonnie Brown, who testified that
she drove Thomas and Fuller to a McDonald’s near the credit union and then waited for
them in a nearby alley. Although the two men did not reveal their planned heist to Brown
in advance, she testified that “they were running with money” when they returned to the
car. Brown then drove Thomas and Fuller to a hotel where she saw them counting “a lot”
of money that, they said, came from robbing a credit union. Other strong evidence came
from the testimony of Ron Lott, who had shared a cell with Thomas in pretrial detention.
He testified that Thomas confessed to committing the robbery with Fuller. Finally, two
credit union customers and one employee identified Thomas as one of the robbers,
specifically the one with the gun.
At trial Thomas attacked the credibility of all the government’s witnesses. Brown,
who was charged in the robbery as well, stood to gain a lighter sentence by testifying
against Thomas. Lott, who was already serving 188 months for an unrelated crime, hoped
to have his sentence reduced by helping the government. And both witnesses gave
testimony at trial that was not entirely consistent with their earlier statements. Thomas’s
counsel seized the opportunity to highlight those inconsistencies and suggested to the jury
that the prospect of reduced sentences had motivated Brown and Lott to lie. Neither
witness, however, was so unbelievable that we would deem their testimony not credible as
a matter of law, and therefore, we would not disturb the jury’s decision to believe them.
See United States v. Griffin, 493 F.3d 856, 863 (7th Cir. 2007) (“credibility is for a jury to
decide”); Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir.2005) (“[I]t is black letter law that
testimony of a single eyewitness suffices for conviction even if 20 bishops testify that the
eyewitness is a liar.”). The same goes for the three eyewitnesses who identified Brown at
trial. Their testimony was not physically impossible, and, therefore, the jury was entitled to
credit their in-court identifications. See United States v. Bailey, 510 F.3d 726, 733-34 (7th Cir.
No. 07-4027 Page 3
2007). It is true that the eyewitnesses were unable to give much of a description of the
robbers immediately after the robbery and that their testimony conflicted with that of other
eyewitnesses who testified that they could not identify the robbers because their faces were
covered, but we leave to the jury the task of assigning weight to conflicting identification
testimony. See Gregory-Bey v. Hanks, 332 F.3d 1036, 1048-49 (7th Cir. 2003). Thus, because
the jury was entitled to believe the testimony of the five witnesses who implicated Thomas
in the robbery, a challenge to the sufficiency of the evidence would be frivolous.
The second potential issue identified by counsel is a challenge to the admission of
evidence showing that Fuller, Thomas’s partner-in-crime, paid $5,000 in cash for a car on
the day of the robbery. At trial, Thomas’s counsel objected on relevancy grounds, see FED.
R. E VID. 402, but the objection was overruled. Any challenge to the evidence on appeal
would be frivolous because the evidence was relevant to corroborating the testimony of
Brown and Lott. Brown, who had identified Thomas and Fuller as the robbers, described
accompanying Fuller to the used car lot where he bought the car, and Lott testified that
Thomas complained about Fuller imprudently using his share of the money to buy a car.
Because Thomas attempted to impeach Lott and Brown, evidence that could bolster their
testimony was surely relevant and, therefore, any argument that the district court abused
its discretion in admitting that evidence, see United States v. Van Allen, 524 F.3d 814, 825 (7th
Cir. 2008), would be frivolous.
In his own submission, Thomas contends that trial counsel (who also represents him
on appeal) provided ineffective assistance because, Thomas believes, counsel failed to offer
certain pieces of evidence or object to the testimony of one of the eyewitnesses. But any
such claim would be better pursued on collateral attack because it relies on matters not in
the record, see Massaro v. United States, 538 U.S. 500, 504-05 (2003); United States v. Harris,
394 F.3d 543, 557-58 (7th Cir. 2005), and because Thomas is still represented by trial
counsel, see United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003).
Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is
DISMISSED.