United States v. Thomas
2014 U.S. App. LEXIS 8003
10th Cir.2014Background
- Terry Thomas was indicted on federal charges for three sales of crack cocaine and for using/maintaining premises for drug manufacture/distribution; tried 146 days after arraignment and convicted on five counts.
- At trial an informant (L.H.) testified to three controlled buys (1.03 g, 0.28 g, 0.18 g); the jury convicted on three distribution counts and two premises counts.
- Physical crack evidence from the buys and from an apartment was admitted; chain-of-custody and informant credibility were litigated.
- District court sentenced Thomas to concurrent 130-month terms based on offense level 28 and a criminal-history score of 12; sentence included a 2‑level firearm enhancement and attribution of 26.91 g of crack.
- On appeal the Tenth Circuit affirmed the convictions but reversed and remanded for resentencing because the government failed to prove several prior convictions used to calculate criminal-history points.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Thomas) | Held |
|---|---|---|---|
| Speedy Trial Act delay | Exclusions (joined defendants; pending motions) make the delay <70 days | Trial began 146 days after arraignment — statute violated | Affirmed: exclusions applied; net 61 days, no statutory violation |
| Admissibility of informant (L.H.) testimony | Testimony relevant, impeachable but admissible; corroboration not required | Testimony unreliable and should be excluded (uncorroborated, impeached) | Affirmed: district court did not abuse discretion; corroboration not required |
| Admissibility of drug exhibits / chain of custody | Chain sufficiently traced by officer testimony; imperfections go to weight | Chain broken / possible tampering by informant; evidence should be excluded | Affirmed: chain adequate to render tampering improbable; admission was within discretion |
| Sentencing: use of unproven prior convictions | Probation report/criminal history proper to calculate score | Government failed to prove several prior convictions by preponderance | Reversed and remanded for resentencing on existing record; government failed to prove priors |
Key Cases Cited
- United States v. Vogl, 374 F.3d 976 (10th Cir. 2004) (reasonableness standard for excluding time when codefendants are joined)
- United States v. Cox, 934 F.2d 1114 (10th Cir. 1991) (uncorroborated witness testimony can support conviction)
- United States v. Cardenas, 864 F.2d 1528 (10th Cir. 1989) (chain-of-custody standard for drugs: render tampering improbable)
- United States v. Smith, 534 F.3d 1211 (10th Cir. 2008) (imperfect chain of custody affects weight, not admissibility)
- United States v. Washington, 11 F.3d 1510 (10th Cir. 1993) (admission of drugs obtained from confidential informant permitted despite surveillance gaps)
- United States v. Irving, 665 F.3d 1184 (10th Cir. 2011) (chain-of-custody sufficient despite investigative protocol breaches)
- United States v. Bedford, 536 F.3d 1148 (10th Cir. 2008) (standard for reviewing jury instructions)
- United States v. Forsythe, 437 F.3d 960 (10th Cir. 2005) (on remand for resentencing, court may limit government to existing record when government failed to make proof)
- Watts v. United States, 519 U.S. 148 (U.S. 1997) (prior convictions for sentencing must be proved by preponderance of the evidence)