991 F.3d 910
8th Cir.2021Background
- Thomason and the victim (JNS) had a relationship starting in 2016; JNS ended it in May 2018 and later moved to Minnesota.
- After being blocked, Thomason traveled from Michigan to Minnesota, placed a tracking device on JNSs car, and returned at least once to replace it.
- On December 6, 2018 Thomason approached JNS at her car; he was arrested the next day. Searches of his rental car and home uncovered a handgun, taser, women s clothing, electrical tape, planning materials, and writings referencing JNS.
- A federal grand jury charged Thomason with interstate stalking under 18 U.S.C. § 2261A(1); he pleaded guilty and was sentenced to 45 months imprisonment, three years supervised release, and $8,606.44 restitution.
- On appeal Thomason raised six claims: First Amendment challenge to use of his writings at sentencing; prosecutorial misconduct including misgendering; alleged breach of the plea agreement on restitution statutes; constitutional overreach of the federal stalking statute; ineffective assistance of counsel; and denial of a recusal motion.
Issues
| Issue | Thomason s Argument | Government s Argument | Held |
|---|---|---|---|
| Use of writings at sentencing / First Amendment | Writings were therapeutic/cathartic and protected speech; court erred by relying on them to depart upward | Writings were evidence of planning, intent, and danger; sentencing may consider background and conduct | No First Amendment violation; writings properly considered to assess intent, danger, and 3553(a) factors |
| Prosecutorial misconduct and misgendering | Prosecution misgendered him and used gendered terms and stereotypes; ignored diagnosis of gender dysphoria when arguing clothing was for victim | Defense waived or forfeited objection; prosecutors permissibly argued clothing fit the victim and was evidence of kidnapping plan | No relief: guilty plea waived nonjurisdictional claims; no plain error and no showing of prejudice |
| Plea agreement breach re restitution statutes | Government breached plea by seeking restitution under both MVRA and VAWA | Plea referenced MVRA but did not prohibit seeking restitution under multiple statutes | No breach; plea did not bar seeking restitution under both statutes |
| Constitutionality of 18 U.S.C. § 2261A(1) (federalism) | Statute intrudes on state police powers; relies on Printz to claim defect | Congress validly prosecuted under federal criminal statute; Printz does not apply to this prosecution | Statute upheld as applied; Printz inapplicable to federal criminal enforcement |
| Ineffective assistance of counsel | Counsel provided constitutionally deficient representation | Record is undeveloped for resolving IAC on direct appeal | Court declines to address IAC claim on direct appeal; remand or collateral relief more appropriate |
| Motion for recusal | Judge was biased by participation in alleged misgendering and by adverse rulings | Judicial rulings and critical remarks alone do not establish bias; Liteky governs | Denial of recusal affirmed; no unacceptable demonstration of bias |
Key Cases Cited
- Elonis v. United States, 135 S. Ct. 2001 (2015) (discusses mens rea for threatening communications but did not address First Amendment limits on sentencing consideration)
- Olano v. United States, 507 U.S. 725 (1993) (plain error standard for appellate review)
- Dawson v. Delaware, 503 U.S. 159 (1992) (First Amendment does not categorically bar evidence of beliefs at sentencing)
- Printz v. United States, 521 U.S. 898 (1997) (limits on federal commandeering of state officials cited for federalism context)
- New York v. United States, 505 U.S. 144 (1992) (federalism principles referenced alongside Printz)
- Liteky v. United States, 510 U.S. 540 (1994) (standard for judicial bias and recusal motions)
- United States v. Varner, 948 F.3d 250 (5th Cir. 2020) (authority noting no obligation to adopt litigant s preferred pronouns)
- United States v. Vong, 171 F.3d 648 (8th Cir. 1999) (guilty plea waives nonjurisdictional claims)
- United States v. Cain, 134 F.3d 1345 (8th Cir. 1998) (same waiver principle for guilty pleas)
- United States v. Manthei, 979 F.2d 124 (8th Cir. 1992) (standard for prosecutorial misconduct review)
- United States v. Sanchez-Gonzalez, 643 F.3d 626 (8th Cir. 2011) (declining to resolve ineffective assistance claims on direct appeal when record is undeveloped)