933 F.3d 685
7th Cir.2019Background
- Thomas and Thompson were indicted for armed bank robbery (18 U.S.C. § 2113(a), (d)) and a § 924(c) firearm count for using/brandishing a gun during a crime of violence; Thompson later pleaded guilty and testified against Thomas.
- At trial, evidence showed Thompson pointed a handgun at tellers while Thomas forced the manager to open the vault; robbers fled with about $60,000.
- The government introduced: (a) testimony from Thomas’s probation officer that a disputed phone number used by co‑defendant belonged to Thomas; and (b) a pretrial jail-call in which Thomas allegedly said a Mercedes he bought after the robbery was worth $30,000 (the court later disclosed the $30,000 phrase was not played to jurors due to inadvertent deletion).
- Jury convicted Thomas on both counts and returned a special verdict finding he aided Thompson’s brandishing; district court sentenced Thomas to 13 years for robbery and a consecutive 7 years (brandishing enhancement) under § 924(c).
- Thomas appealed, raising evidentiary objections, a prosecutorial-closing-argument issue, a Sixth Amendment Speedy Trial claim (trial ~18 months after indictment), and a challenge to jury instructions regarding accomplice liability/advance knowledge for brandishing. Thompson’s separate appeal was dismissed under Anders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of probation officer’s testimony tying phone number to Thomas | Testimony was relevant to identity and corroborated co‑defendant’s account | Admission put Thomas’s prior conviction (probation) before jury and was unfairly prejudicial | No plain error: testimony was probative, defense had already put criminal history before jury, risk of unfair prejudice was minimal |
| Admission of jail-call referencing $30,000 value of Mercedes | Statement was relevant to show purchase funded by robbery and not cumulative; value was disputed so admissible | Unfairly prejudicial and cumulative; defendant objected below | No abuse of discretion: value was disputed, defendant refused to stipulate, call was not unfairly prejudicial |
| Prosecutor’s use of “you” during closing when explaining reasonable‑person intimidation standard | Misleading jury toward subjective standard and golden‑rule misconduct | Court promptly corrected prosecutor; instruction provided correct objective standard | No plain error: court corrected the remark immediately; instructions were correct and evidence strong |
| Speedy Trial (18‑month delay; 242 days attributed to continuance) | Delay violated Sixth Amendment; trial too late and prejudiced defense | Continuance was caused by counsel conflict and need to protect witnesses; delay justified and not attributable solely to government | No plain error: delay was for legitimate reasons, defendant showed no actual prejudice |
| Jury instructions re: § 924(c) aiding/abetting brandishing (advance knowledge element) | Special verdict form failed to reiterate advance‑knowledge requirement, risking verdict without unanimous finding of advance knowledge | Instructions on Count Two properly required advance knowledge; special verdict merely asked for unanimity on brandishing and referenced Count Two instructions | No plain error: instructions adequately conveyed advance‑knowledge requirement; special verdict did not eliminate that element |
Key Cases Cited
- Olano v. United States, 507 U.S. 725 (plain‑error review framework)
- Barker v. Wingo, 407 U.S. 514 (Speedy Trial balancing test)
- Old Chief v. United States, 519 U.S. 172 (consider availability of stipulation when admitting evidence of past convictions)
- United States v. Armour, 840 F.3d 904 (7th Cir.) (government must prove advance knowledge of brandishing for § 924(c) enhancement)