17-4022-cr (L)
2d Cir.Mar 20, 2019Background
- Bernard Thomas, a convicted felon, was convicted by a jury of possession of ammunition in violation of 18 U.S.C. § 922(g) after a second trial in which the government argued he was the shooter (he had earlier been tried on a theory he possessed a spent shell casing as an informant).
- At trial Thomas claimed informant status and argued an acquaintance committed the shooting; he conceded that possession without authority would be criminal.
- During deliberations a juror was interviewed and dismissed after a witness reported the juror said “huh, liars”; an alternate replaced the juror and deliberations restarted.
- Thomas raised trial errors (juror dismissal, sufficiency/definition of ammunition, limits on cross-examination about another person’s informant status, and alleged faulty jury instructions) and challenged his sentence as procedurally and substantively unreasonable.
- The government cross-appealed the district court’s rejection of ACCA enhancement; Thomas had three prior New York felonies including first‑degree robbery, attempted third‑degree robbery, and first‑degree sexual abuse.
- The Second Circuit affirmed the conviction on the trial issues but vacated the judgment and remanded for resentencing so the district court can resolve whether ACCA applies (including whether the sexual‑abuse conviction falls under the subdivision requiring forcible compulsion).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Juror dismissal during deliberations | United States: district court properly investigated alleged juror misconduct and permissibly replaced juror under Rule 24(c) | Thomas: court abused discretion, factual error, violated fair‑trial rights | Court: no abuse of discretion or clear error; removal permissible and proper investigation justified |
| Sufficiency / whether a spent shell casing is "ammunition" | United States: at conviction trial theory was possession of live ammunition while shooting; jury could find Thomas knowingly possessed ammunition | Thomas: spent shell casing is not ammunition and he did not know it was ammunition | Court: argument waived/moot—government proceeded on live‑ammunition theory and Thomas conceded possession without authority would be crime |
| Limiting cross‑examination about acquaintance being an informant | United States: questioning would risk exposing informant identities and had minimal probative value absent record support | Thomas: exclusion prevented impeachment/support of defense theory that police framed him to protect an informant | Court: evidentiary ruling not arbitrary; exclusion reasonable and any error harmless given weak record support and hospital records placing acquaintance elsewhere |
| Jury instruction language re: knowing possession ("knew the shell casing was ammunition") | United States: (objected at charge conference) the phrase conflicted with statutory definition | Thomas: requested the instruction and later objected to its wording being reduced; asserts it misstates law | Court: instruction was invited by Thomas (waived); deletion of "as we commonly use the word" was correct and non‑misleading |
| Sentencing procedural/substantive reasonableness & special conditions | United States: defends sentence (cross‑appeal focuses on ACCA); recommends clarifying sentence on remand | Thomas: challenges explanation, inconsistencies between oral/written statements, and special supervised‑release conditions (psychosexual evaluation, sex‑offender registration) | Court: left unresolved as moot for now because ACCA issue may alter applicable range; vacated and remanded for resentencing so district court can address these issues anew |
| ACCA enhancement applicability (government cross‑appeal) | United States: Thomas has three prior violent felonies triggering ACCA mandatory minimum | Thomas: at least one prior (sexual abuse) may not qualify; COD unreliable; ACCA inapplicable | Court: remanded to determine whether the sexual‑abuse conviction was under subdivision requiring forcible compulsion and, if so, to reconsider whether §130.65(1) is a violent felony in light of recent authorities; resentencing ordered |
Key Cases Cited
- United States v. Delva, 858 F.3d 135 (2d Cir.) (juror removal under Rule 24(c) requires good cause)
- United States v. Farhane, 634 F.3d 127 (2d Cir.) (district court has broad flexibility addressing juror misconduct)
- United States v. Quinones, 511 F.3d 289 (2d Cir.) (deferential review of evidentiary rulings; waiver principles)
- United States v. Cadet, 664 F.3d 27 (2d Cir.) (harmless‑error review for evidentiary mistakes)
- United States v. Lange, 834 F.3d 58 (2d Cir.) (de novo review of jury instructions)
- United States v. Baker, 262 F.3d 124 (2d Cir.) (review of juror dismissal factual findings for clear error)
- United States v. Thrower, 914 F.3d 770 (2d Cir.) (New York robbery and attempted robbery qualify as ACCA violent felonies)
- United States v. Pereira‑Gomez, 903 F.3d 155 (2d Cir.) (New York robbery and attempted robbery are crimes of violence under career‑offender provisions)
- Stokeling v. United States, 139 S. Ct. 544 (U.S. Supreme Court) (robbery classifications as violent felonies under ACCA)
- United States v. Green, 480 F.3d 627 (2d Cir.) (procedures for resolving ambiguity in prior conviction records such as COD)