United States v. Gregory Thomas

548 F. App'x 987
CourtCourt of Appeals for the Fifth Circuit
DecidedDecember 16, 2013
Docket12-11274
StatusUnpublished
Cited by2 cases

This text of 548 F. App'x 987 (United States v. Gregory Thomas) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth 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. Gregory Thomas, 548 F. App'x 987 (5th Cir. 2013).

Opinion

PER CURIAM: *

A jury convicted Gregory Lashon Thomas of one count of conspiracy to commit mail fraud in violation of 18 U.S.C. § 1349 and three counts of mail fraud and aiding and abetting in violation of 18 U.S.C. §§ 1341 and 1342 in connection with a mortgage-fraud scheme. Thomas appeals several rulings of the district court during trial and at sentencing. For the reasons below, we AFFIRM the district court’s judgment.

I. Factual and Procedural Background

In 2008, Gregory Lashon Thomas conspired with Aja D. Crawford and Ernest Ohenekitiwa McMillan to execute a mortgage-fraud scheme that involved fraudulently obtaining mortgages in order to purchase residential properties in and around Dallas, Texas. On June 21, 2011, Thomas, Crawford, and McMillan were indicted for conspiracy to commit mail fraud in violation of 18 U.S.C. § 1349, and three counts of mail fraud and aiding and abetting under 18 U.S.C. §§ 1341 and 1342 for transactions involving three specific properties. 1 In addition to the three properties includ *989 ed in the indictment, Thomas was allegedly involved in twenty-six other fraudulent property transactions between 2006 and 2009, all of which operated in a similar manner. The total amount of fraudulently obtained loans for all of the properties was allegedly $5,842,000, with the actual loss for these properties totaling $2,094,000. Thomas pled not guilty to all four counts.

Thomas’s jury trial commenced on August 27, 2012, and continued for nine days. The jury found Thomas guilty on all four counts. The court later sentenced Thomas to concurrent terms of 189 months’ imprisonment for each count, followed by concurrent three-year terms of supervised release, and it ordered restitution in the amount of $2,094,000. Thomas timely appealed.

II. Discussion

Thomas appeals the introduction of inadmissible character evidence during trial, the district court’s refusal to permit him to examine a juror regarding allegations of misconduct, and the district court’s calculation of his offense level at sentencing. We review each in turn.

A. Inadmissible Evidence

The government called Thomas’s co-conspirator, Crawford, to testify to the details of the mortgage-fraud scheme. During cross-examination on the third day of trial, Crawford spontaneously mentioned that Thomas was a convicted criminal. Crawford mentioned that she met McMillan and another individual named Steve at a halfway house, and defense counsel asked for clarification:

Q: And, again, for the jury, a halfway house is what?
A: I guess when you do time in federal prison they send you to a halfway house to live there until I guess you can go in the streets.
Q: These are convicted criminals then you’re dealing with?
A: Yes. Ernest [McMillan] and Greg [Thomas] I didn’t know at the time were convicted criminals, yes.

Defense counsel asked to approach the bench regarding the remark, and the court conducted a brief conference. Defense counsel argued that Crawford’s testimony violated the court’s orders concerning evidence of prior convictions. The parties believed that Crawford misspoke and that she had been talking about McMillan and Steve, not Thomas, so the court asked if defense counsel “could clear that up.” Defense counsel did not believe he could because, even if Crawford was referring to Steve, Thomas did have a prior conviction. The court suggested that defense counsel clarify whether Crawford had accidentally referred to Thomas, by asking, “Did you misspeak and did you mean to say that you met Steve and Ernest [McMillan] at the halfway house?” However, defense counsel proceeded with the cross-examination without clarifying Crawford’s testimony or asking the question proposed by the court.

Shortly thereafter, defense counsel questioned Crawford regarding her acquaintances, asking her, “How many convicted felons do you know ma'am?” Crawford replied, “I don’t know. I mean, I didn’t know Greg [Thomas] was a convicted felon[.]” Defense counsel attempted to interrupt Crawford and stop her testimony, and he ultimately asked if he could approach the bench because he could not “control the witness.” The court instructed the witness to answer the questions and refrain from arguing with defense counsel.

Defense counsel continued questioning Crawford, but the court eventually asked counsel to approach the bench before redirect. At that time, defense counsel moved for a mistrial based on the witness’s state- *990 merits, which the government opposed. The court denied the motion, finding that

The references have been very brief in context. They did not clearly indicate that the defendant had a criminal record. As this occurred early in what is expected to be a two-week trial, and at this point I don’t even know if the defendant is going to testify or not. And if he were to testify this would come into evidence.

Defense counsel then requested that the court instruct the jury to disregard any statement that Crawford made about Thomas being a convicted felon. The court believed that an instruction would only highlight the statements to the jury, so it declined to give one. However, at the close of trial, the judge gave the jury a general limiting instruction:

Additionally, the defendant is on trial here only for the offenses set forth in the indictment....
The defendant is not on trial for any acts, conduct, or offense not alleged in the indictment....
During the trial, you have heard evidence of alleged acts of the defendant that may be similar to those charged in the indictment but that were allegedly committed on other occasions. You must not consider any of this evidence in deciding if the defendant committed the acts charged in the indictment. However, you may consider this evidence for other very limited purposes.
1. Standard of review

We review evidentiary rulings for abuse of discretion when the party timely objects to the ruling. United States v. Simmons, 470 F.3d 1115, 1124 (5th Cir.2006). In the absence of a proper objection, we review the evidentiary ruling only for plain error. See Fed.R.Evid.

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Bluebook (online)
548 F. App'x 987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gregory-thomas-ca5-2013.