United States v. Carl Thompson, II

690 F. App'x 302
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 16, 2017
DocketCase 16-1182
StatusUnpublished
Cited by5 cases

This text of 690 F. App'x 302 (United States v. Carl Thompson, II) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Carl Thompson, II, 690 F. App'x 302 (6th Cir. 2017).

Opinions

OPINION

COLE, Chief Judge.

On this direct appeal of his conviction, Carl Thompson II challenges the district court’s decisions to admit evidence of his previous drug distribution acts, deny his motion for a new trial based on newly discovered evidence, join his drug and gun charges for trial, and deny his motion for judgment of acquittal. We affirm the district court on ail claims.

I. BACKGROUND

A. Factual Background

On October 8, 2014, Thompson was charged with two counts of possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The indictment charged Thompson with possession of a revolver on June 11, 2013, and of a semiautomatic pistol on June 12, 2013.

The police arrested Thompson along with Jesse Phillips in Grand Rapids, Michigan, on October 21, 2014, in the driveway of 2229 Horton Avenue. Officers searched Thompson and Phillips and then secured them in police vehicles. The searches did not turn up drugs but each man had about $650 on his person. Officer Molían, who had followed Thompson and Phillips prior to the arrest, investigated a prior stop he had witnessed the two men make. He returned about forty-five minutes later with two U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) agents. At this point, the officers released Phillips. Subsequently, the officers found four bags of drugs on the lawn within ten feet of the car. Testing after the arrest determined that two of the bags contained marijuana (11.73 and 1.56 grams respectively), one contained crack cocaine (7.39 grams), and one contained heroin (3.7 grams).

B. Procedural Background

On December 2, 2014, Phillips testified, with immunity, before a grand jury that Thompson threw the drugs out of the car window after they pulled into the driveway at 2229 Horton Avenue. After Thompson’s [304]*304arrest and Phillips’s grand jury testimony, the government filed a superseding indictment that charged Thompson with possession with intent to distribute crack cocaine and marijuana. On January 7, 2015, the government filed a second superseding indictment that added heroin to the drugs Thompson was charged with possessing with intent to distribute. The second superseding indictment, which was the operative indictment at trial, charged Thompson with three offenses. Count one charged him with being a felon in possession of a firearm for the June 11, 2013, possession of a loaded Smith and Wesson revolver. Count two charged him with being a felon in possession of a firearm for the June 12, 2013, possession of a Hi-Point semiautomatic pistol. Count three charged him with possession with intent to distribute heroin, cocaine base, and marijuana on October 21, 2014.

Thompson pleaded not guilty to all of the charges and was detained pending trial. In pretrial motions the defense sought to exclude evidence of Thompson’s prior marijuana involvement, which included testimony from Thompson’s ex-girlfriend Diara Saffore and her mother Erica Nix that he sold marijuana at unspecified times in 2013, his previous marijuana convictions, and text messages that allegedly discuss drug dealing. The district court waited until trial to rule on these issues.

At trial, the government presented twenty-four witnesses. Even after the district court issued a material witness warrant, Phillips, a government witness, failed to show up for trial.

To prove count three, the government elicited testimony from ten witnesses. Saf-fore, a felon, testified about Thompson’s prior instances of selling marijuana. Thompson’s trial counsel objected to the relevance of her testimony, but the court allowed the testimony to continue based on a previous ruling about the admissibility of the evidence because the evidence helped demonstrate intent for the specific intent crime charged. Nix, another felon, also testified to previous instances in which she had seen Thompson sell marijuana in the house she shared with Thompson and her daughter.

Julie Snyder, a fingerprint examiner with the Grand Rapids Police Department, testified that she did not find any fingerprints on the bags of drugs retrieved on October 21, 2014, but noted the bags were of a kind that does not normally retain fingerprints.

Officer Butler, a detective in the vice unit, testified to details about the drug trade. He testified that the average-use amount of crack cocaine is .1 grams, and that a typical user will possess between one and five times that amount. He also testified that in his experience he had never come across a user with that amount of crack cocaine (7.39 grams), which would be valued at about $1400. He stated that cell phones and cars are often used as tools to distribute drugs.

Butler testified that the typical consumption amount for heroin is fifty milligrams. and that even the “hardest core user” would not use more than a gram in a day. (Trial Tr,, R. 139, PagelD 1447.) He further estimated that the 3.7 grams of heroin retrieved on October 21, 2014, would be worth over a thousand dollars. He testified that of the two bags of marijuana retrieved, the smaller bag of 1.57 grams is called a nickel bag and is the normal amount sold to street-level purchasers. The larger bag and the smaller bag combined are about fourteen grams, which is the normal amount carried for distribution.

Through Butler’s testimony, the government introduced a series of text messages [305]*305sent and received by Thompson that allegedly related to drug dealing. Thompson’s trial counsel objected to the text messages arguing that they constituted hearsay and were unfairly prejudicial. Trial counsel also referenced the court’s decision prior to trial about allowing the messages to be admitted. Butler testified that several of the phrases used in the text messages were shorthand or slang terms for drugs or drug-distribution-related terms.

ATF Special Agent Yandl testified that he had interviewed Thompson on multiple occasions and had been involved in the drug and gun investigations. Through Yandl’s testimony, the government introduced several pictures from Phillips’s social media accounts that showed him and Thompson with guns, marijuana, and wads of cash.

The government presented two stipulations that Thompson agreed to after the court overruled his Rule 404(b) objections: (1) police stopped Thompson on June 28, 2012, and found nine distribution-sized bags of marijuana and $94 on him; and (2) police stopped Thompson on April 20, 2010, and found him with $116, a digital scale and corner bags, and before the stop his passenger threw a bag of marijuana from the car. When the government rested, the defense moved for a judgment of acquittal on all charges, arguing that the government had failed to produce sufficient evidence to support a conviction. The district court denied the motion.

The defense then presented its ease. It produced five witnesses and attributed the drugs to Phillips. Phillips’s ex-girlfriend, Sally Hobson, testified that Phillips had been a drug dealer his whole life and had admitted to her on October 21, 2014, after he and Thompson were stopped by police, that he had lost his “stuff.” (Trial Tr., R. 140, PagelD 1592, 1597.) After the defense rested, Thompson renewed his motion for judgment of acquittal. The district court again denied the motion.

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Bluebook (online)
690 F. App'x 302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-carl-thompson-ii-ca6-2017.