United States of America v. Shawn Kelly Thomason
No. 19-2537
No. 19-3702
No. 20-1230
United States Court of Appeals For the Eighth Circuit
Filed: March 16, 2021
Submitted: October 28, 2020
Appeals from United States District Court for the District of Minnesota
Before COLLOTON, SHEPHERD, and GRASZ, Circuit Judges.
Shawn Kelly Thomason pleaded guilty to one count of interstate stalking under
The offense arose from a relationship between Thomason and a victim who is identified by her initials as JNS. They began a relationship in Michigan during
On December 6, 2018, Thomason approached JNS while she sat in her car outside her home. Thomason was arrested the next day for stalking. Officers searched Thomason‘s rental car and discovered, among other items, a handgun, a taser, electrical tape, women‘s clothing, and writings that included notes to JNS. Federal officers later executed a search warrant at Thomason‘s home, where they discovered lists and materials to prepare for his confrontation with JNS.
A grand jury charged Thomason with interstate stalking, and he pleaded guilty pursuant to a plea agreement. The court imposed a term of 45 months’ imprisonment and ordered Thomason to pay $8,606.44 in restitution to JNS. Thomason appeals the conviction, sentence, and restitution order.
First, Thomason argues that the district court violated his right to freedom of speech under the First Amendment by considering the writings found in his car. Because Thomason raises this claim for the first time on appeal, we review for plain error. See
In explaining its decision to depart upward from the advisory guideline range, the district court explained that it was “concerned” by Thomason‘s writings and characterized some of the material as “frightening.” As an example, the court quoted a note found in Thomason‘s car as follows: “Frankly, I don‘t give [an expletive] if this was your first relationship or your tenth. . . . People get shot over things like this. . . . When you piss someone off, by defaulting on your promises and/or commitments you should be aware of the consequences.”
Thomason argues that because the purpose of the writing was “therapeutic” or “cathartic,” the speech is protected and cannot be used as a basis for imposing a sentence. He relies on Elonis v. United States, 135 S. Ct. 2001 (2015), where the Court held that a defendant charged with making a threatening communication could not be convicted based solely on how a reasonable person would react to the communication. See id. at 2004-05, 2012. Elonis, however, concerned only the elements of the federal offense and did not address any First Amendment issues. See id. at 2012. The federal sentencing statutes, by contrast, place “[n]o limitation . . . on the information concerning the background, character, and conduct of a person convicted of an offense which a court . . . may receive and consider,”
Here, despite Thomason‘s assertion that the writings had “therapeutic”
Second, Thomason argues that his conviction must be vacated because the prosecution engaged in misconduct by referring to him with masculine pronouns and with “stereotypes” like “gunman” and “boyfriend.” He also contends that the prosecution ignored his diagnosis of gender dysphoria by claiming that the women‘s clothing found in his car was for JNS when the record showed that Thomason sometimes wears women‘s clothing.
To succeed on a claim of prosecutorial misconduct, Thomason must show that flagrant misconduct caused substantial prejudice to his rights. United States v. Manthei, 979 F.2d 124, 126 (8th Cir. 1992). Because Thomason did not raise the issue before the district court, we review only for plain error.
The grand jury charged Thomason in January 2019, and Thomason pleaded guilty in March 2019. Thomason first indicated a preference for the use of gender-neutral pronouns in a letter dated May 29, 2019, that defense counsel sent to the probation office and prosecutors about sentencing. Two months earlier, Thomason had signed a plea agreement that referred to him with masculine pronouns. See R. Doc. 43, at ¶ 2 (“[T]he defendant drove from his home in Hazel Park, Michigan . . . .“) (“The defendant agrees that he traveled from Michigan to Minnesota. . . .“), ¶ 3 (“The defendant agrees that he used interactive computer services . . . .“), ¶ 4 (“The defendant understands and agrees that he has certain rights. . . .“), ¶ 6 (“The defendant understands that if he were to violate any condition of supervised release . . . .“), ¶ 10 (“The defendant represents that he will fully and completely disclose . . . .“), ¶ 11 (“The defendant agrees that he will not contact the victim . . . .“).
In the letter to the probation office, Thomason asked that, “to the extent possible, gender neutral pronouns be used when referring to him.” The letter said: “He prefers use of the pronouns: ‘they,’ ‘them’ and ‘their.‘” But the letter itself referred to Thomason as “he” and “him” in making the request, and said that “[f]or the sake of clarity,” Thomason‘s own objections to the draft report “may use the masculine pronouns.” As the filings in this case illustrate, clarity suffers and confusion may follow when legal writing refers to a single individual as “they,” especially when the materials advert to other actors who are naturally described as “they” or “them” in the traditional plural.2
At the sentencing hearing in July 2019, a prosecutor said that the government would “do [its] best to be respectful of the defendant‘s wish to be referred to in gender-neutral pronouns,” but explained that it was “a new development” in the case that conflicted with “eight months of habit of using male pronouns.” The prosecutor and defense counsel then referred to Thomason with masculine pronouns during the hearing. The government asked a witness: “When the defendant was arrested on December 7th of 2018, was he driving his own car?” There was no objection. In discussing documents seized from Thomason‘s car, defense counsel asked a witness to confirm that there were “[l]ots of other writings that he had with him, right?”
Thomason did not object to the use of masculine pronouns until the end of a restitution hearing on November 12, 2019. At that point, he objected to “all 134 instances of purposeful and deliberate misgendering of me in this case as it pertains to the restitution memorandums.”
We reject Thomason‘s argument that alleged prosecutorial misconduct justifies vacating his conviction. By pleading guilty, Thomason waived all non-jurisdictional claims arising from events before the plea. See United States v. Vong, 171 F.3d 648, 654 (8th Cir. 1999); United States v. Cain, 134 F.3d 1345, 1352-53 (8th Cir. 1998). There is no basis for resentencing either. By signing a plea agreement that used masculine pronouns, acknowledging that his own sentencing letter would use masculine pronouns for the sake of clarity, and using masculine pronouns through counsel at the sentencing hearing, Thomason waived any claim of misconduct by opposing counsel. And even if we assume forfeiture rather than waiver, there is no plain error warranting relief. Thomason cites no authority for the proposition that litigants and courts must refer to defendants by their preferred pronouns, and the only cited authority is to the contrary. See United States v. Varner, 948 F.3d 250, 254 (5th Cir. 2020). Nor is there any showing that the use of pronouns affected the outcome of the proceeding.3
On Thomason‘s contention that the government disregarded his diagnosis of gender dysphoria, there was no prosecutorial misconduct. The prosecution presented evidence that the women‘s clothing discovered in Thomason‘s car was sized to fit the victim, not Thomason. On that basis, the government permissibly argued that the clothing was evidence of a plan to kidnap the victim. The record is clear, moreover, that the district court sentenced Thomason based on his conduct, not due to his gender or gender identity.
Third, Thomason argues that the government breached the terms of his plea agreement by seeking restitution under
Fourth, Thomason argues that the interstate stalking statute,
Fifth, Thomason argues that he was deprived of the assistance of counsel under the Sixth Amendment because his trial counsel was ineffective. Following our usual practice, we decline to address his ineffective assistance of counsel claim on direct appeal because the record is not fully developed. See United States v. Sanchez-Gonzalez, 643 F.3d 626, 628-29 (8th Cir. 2011).
Sixth, Thomason appeals the district judge‘s denial of Thomason‘s motion for recusal. Thomason argues that the judge showed bias by his “willingness to participate” in alleged misgendering, and by making unfavorable rulings. “[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion,” and “judicial remarks . . . that are critical or disapproving of, or even hostile to” a party “ordinarily do not support a bias or partiality challenge.” Liteky v. United States, 510 U.S. 540, 555 (1994). Thomason‘s motion offered nothing beyond the matters that Liteky deems ordinarily insufficient. The judge did not abuse his discretion by denying Thomason‘s motion for recusal.
The judgment of the district court is affirmed.