United States v. Joel Thomas, Jr.

843 F.3d 1199, 2016 U.S. App. LEXIS 22625, 2016 WL 7367828
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 20, 2016
Docket14-10427
StatusPublished
Cited by4 cases

This text of 843 F.3d 1199 (United States v. Joel Thomas, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth 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. Joel Thomas, Jr., 843 F.3d 1199, 2016 U.S. App. LEXIS 22625, 2016 WL 7367828 (9th Cir. 2016).

Opinions

Dissent by Judge KOZINSKI

OPINION

SCHROEDER, Circuit Judge:

Joel Thomas, Jr. appeals from the judgment following his jury conviction and sentence for multiple counts of conspiracy and armed bank robbery. He received a total sentence of 49.5 years, and challenges both the conviction and the reasonableness of the sentence.

His challenges to the conviction can be easily dealt with. The sentence raises more difficult issues. This is because 32 years of the total 49.5 year sentence were required to be imposed, consecutive to any other sentence, as a result of statutory, mandatory mínimums over which the district court had no discretion. The remaining sentence of 17.5 years was imposed at the low end of the Sentencing Guidelines range pursuant to calculations that are not challenged. Those calculations included enhancements for obstruction of justice and the abduction of bank employees, as well as for Thomas’s leadership role in all of the robberies. We affirm.

BACKGROUND

The novel twist in this ease is that the defendant was a bank teller whose string of robberies included the banks where he worked and hence had inside information. From October 2010 through March 2012, Thomas was employed as a teller, first at a Wells Fargo Bank in Sun City, Arizona and then at a Chase Bank in nearby Peoria, Arizona; he robbed both banks.

In early August 2011, Thomas and a friend, Billy Brymer, began planning the bank robberies. Thomas made the robberies possible by providing inside information on the banks, their security practices, floor plans, and degree of customer usage during various parts of the day. Brymer had no particular knowledge of banks or banking, but recruited two homeless men, [1201]*1201McQueen and Brown, as well as two men from California, Bagley and Edwards, to assist in the actual robberies. Thomas recruited a friend to. serve as lookout during one of the robberies in exchange for a car and money.

Thomas and Brymer planned at least two of the robberies as armed robberies, and together purchased the weapons that were actually used. Thomas chose the banks that were robbed.

The first armed robbery occurred on January 21, 2012, at the Sun City Wells Fargo branch where Thomas' had worked earlier. Bagley and Edwards participated in the robbery, according to Thomas’s plan. After entering the bank,' Edwards pointed a gun at a bank employee and demanded access to the vault, acting on Thomas’s earlier instructions. When access to the vault was not possible because no manager was available to open it, Edwards demanded money from the tellers- and came away with approximately $7,200.

The second robbery occurred on February 25, 2012, at a Wells Fargo branch chosen by Thomas. This robbery was not armed. With Thomas’s help, Brymer wrote the demand note that McQueen handed to the teller. After the robbery, the robbers met with Brymer and Thomas and divided the money.

The third robbery, which was armed, occurred on February 29, 2012, at the Chase Bank in Peoria where Thomas was then working. It was part of Thomas’s employment duties to signal to the bank manager that there was no suspicious activity that might prevent the bank’s opening. On the day of the robbery, as the manager, on Thomas’s signal, opened the door, Brymer entered the bank, pointed a gun at the manager, and demanded money. Thomas stood by during the entry and handed Brymer the bag in which to carry away the money. That robbery yielded proceeds of more than $240,000.

Immediately after the robbery, police arrived at the bank to investigate and assumed that both the manager and Thomas were victims of the robbery. Thomas’s excessive use- of his cell phone led police to suspect that Thomas might be involved in the robbery. They asked him to turn over his phone, and he did so. In interviewing Thomas, the police. became more suspicious because of his inability to answer basic questions about the • appearance of the robber. After obtaining a search warrant for his home, car, and phone, the police found in his bedroom a loaded Glock 9 mm semiautomatic handgun and ammunition. In Thomas’s car was another semiautomatic handgun and notes with the work schedule of bank employees, as well as a hand-drawn floor plan of the Chase Bank. The search of the phone yielded text message exchanges between Thomas and Brymer immediately following the robbery when police were on the scene, and also disclosed Thomas’s efforts to delete those messages.

Thomas was arrested after the execution of the warrants. Thomas then spoke to agents and admitted his role in the planning of the robberies and the purchase of weapons; his statements became evidence used to impeach him during the trial. The jury convicted him on three counts of conspiracy to commit bank robbery, two counts of armed bank robbery, one count of bank robbery, and two counts of use of a firearm during a crime of violence under 18 U.S.C. § 924.

The two counts of use of a firearm during a crime of violence resulted in mandatory minimum consecutive terms amounting to 32 years. For the six underlying counts of conspiracy and robbery, the district court sentenced him to 210 months, the low end of the Guidelines range.

The principal challenges to his conviction include the sufficiency of the evidence [1202]*1202to establish that the banks were FDIC insured as required under 18 U.S.C. § 2113(a), and to establish his knowledge of the use of weapons in the robberies. He also raises some evidentiary and procedural objections. With respect to the sentence, Thomas’s only contention is that it was unreasonable. See 18 U.S.C. § 3742.

DISCUSSION

I. The Conviction

We deal first with challenges to the conviction. Thomas avers that there are two reasons why there was insufficient evidence for a rational jury to convict him, but his arguments are unavailing. On the bank robbery counts, Thomas asserts that there was insufficient evidence to establish that each of the banks was FDIC insured. See United States v. James, 987 F.2d 648, 650 (9th Cir. 1993) (requiring the government to “prove that the money taken was from a bank insured by the FDIC”). Bank employees with knowledge of the insurance status testified as to each bank, however, and their testimony was corroborated by each bank’s certifícate of insurance. As to the use of a firearm, Thomas claims, for the first time on appeal, that his conviction for armed bank robbery and use of a firearm during a crime of violence were unsupported because there was insufficient evidence to show that he knew of and planned for the úse of guns during the robberies. We need not address the argument at length as it was never raised below, and is belied by the record of his extensive involvement in acquiring the weapons and planning for their use.

Thomas argues that the district court abused its discretion in admitting evidence of Thomas’s gun ownership. Federal Rule of Evidence

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Bluebook (online)
843 F.3d 1199, 2016 U.S. App. LEXIS 22625, 2016 WL 7367828, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-joel-thomas-jr-ca9-2016.