UNITED STATES OF AMERICA, Plаintiff-Appellee, v. SEVON E. THOMAS, Defendant-Appellant.
No. 19-2129
United States Court of Appeals For the Seventh Circuit
ARGUED JUNE 1, 2020 — DECIDED AUGUST 14, 2020
Before RIPPLE, WOOD, and SCUDDER, Circuit Judges.
Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. No. 4:17-cr-13 — Tanya Walton Pratt, Judge.
I
Sevon Thomas came to the attention of law enforcement through a government informant. At the poliсe‘s direction, the informant called and ordered several ounces of methamphetamine from a source known as “Eric.” After arranging for delivery, the informant told law enforcement that Eric would bring the drugs to a McDonald‘s in Georgetown, Indiana, in a black Chevy Impala with Kentucky plates. Sure enough, the delivery took place as planned, and the driver turned out to be Sevon Thomas. The police arrested Thomas and searched his car. When a detective opened the glove compartment, 160 grams of methamphetamine and two guns fell out.
A grand jury charged Thomas with possessing with the intent to distribute methamphetamine (
For its part, the government attempted to prove that Thomas had the guns to further his drug dealing by introducing the testimony of FBI Special Agent Paul Meyer. The government seemed to call Meyer as a lay witness, not an expert. Yet on direct examination Meyer nevertheless drew on his training and experience to offer expert testimony in the form of an opinion about the connection between gun possession and drug dealing. Meyer told the jury that “a firearm is a tool of the drug trade” that drug dealers use “for personal protection against others in that particular business, whether it‘s to protect the drug proceeds that they may have on them or a combination of drug proceeds or drugs, the supply of drugs that they may be dealing at the time.” He added that a gun could also be used “for intimidation” because a customer who knows a drug dеaler is armed “may be more apt to pay his bill.”
The government then questioned Meyer about his knowledge of Thomas‘s case, most of which he had learned from the agent who searched Thomas‘s car:
Q: And in this case, were there firearms found?
A: Yes, ma‘am, there was.
Q: Okay. Were they—were the firearms found in a locked case?
A: No, they were not.
Q: Where were the firearms found in relation to the methamphetamine?
A: They were co-located with the methamphetamine. As reported to me, they had been in the glove box. However, when the glove box fell open, they had fallen on the passenger side floorboard area.
Q: And were both firearms loaded?
A: They were.
Thomas never objected to any aspect of Meyer‘s testimony.
During closing arguments, the prosecutor relied on Meyer‘s testimony to establish a connection between the guns and the drugs. She argued to the jury that Thomas had guns “[b]ecause he‘s a drug dealer.” She then added, “You heard from Special Agent Meyer that drugs and guns go hand in hand and they‘rе dangerous. Where does the defendant do his drug deals? Not at his house. He does them at his car.”
After closing arguments, the district court turned to the jury instructions. A superseding indictment had charged Thomas with violating
The jury returned guilty verdicts on Counts 1 and 2, and the district court sentenced Thomas to a total of 15 years’ imprisonment—ten years for the drug charge plus five consecutive years for the firearm offense.
On appeal Thomas contends that the district court failed to follow the correct procedures fоr admitting Special Agent Meyer‘s testimony because it included both expert and lay opinions and thus amounted to “dual-role” testimony. Thomas also argues that the jury instructions confused and misled the jury by omitting any definition of the statutory “in furtherance of” requirement but including definitions of statutory terms not relevant to the precise
Wе start with the admission of FBI Special Agent Paul Meyer‘s testimony. Ordinarily we review a district court‘s decision to admit testimony for an abuse of discretion. See United States v. Parkhurst, 865 F.3d 509, 514 (7th Cir. 2017). We apply a more deferential standard here, though, because Thomas never objected to Meyer‘s testimony during trial. In these circumstances, Thomas needs to show that the admission of the testimony amounted to plain error—an error so profound that it сompromised Thomas‘s substantial rights and seriously affected the fairness, integrity, or public reputation of judicial proceedings. See United States v. Olano, 507 U.S. 725, 736 (1993); see also United States v. Resnick, 823 F.3d 888, 896 (7th Cir. 2016) (applying the same standard).
Thomas focuses on the difference between lay and expert testimony. “[L]ay testimony results from a process of reasoning familiar in everyday life, while expert testimony results from a process of reasoning which can be mastered only by specialists in the field.”
Sometimes a witness offers both lay and expert testimony—what the case law calls “dual-role” testimony. See
The setting here is law enforcement. All agree that Special Agent Meyer provided both lay and expert testimony at Thomas‘s trial. Meyer testified that, “[a]s reported to [him],” the firearms found in Thomas‘s car were loaded and “co-located with the methamphetamine“—lay testimony based not on his specialized knowledge but instead on his personal familiarity with the case. Earlier in the questioning, though, the government asked Meyer to offer a view “[b]ased upon [his] training and experience” about the connection between gun possession and drug dealing. He replied that firearms are “tool[s] of the drug trade” used “for personal protection” and “intimidation.” This description fits squarely within the type of specialized knowledge—in this case rooted in a law enforcement officer‘s experience investigating drug offenses over many years—that
Our case law emphasizes the care district courts must take in admitting dual-role testimony. We most recently underscored the pоint in United States v. Jett, explaining that the admission of dual-role testimony, while permissible, risks confusing the jury. See 908 F.3d at 267 (collecting cases). More concretely, a jury “may unduly credit the [case agent‘s] opinion testimony due to a perception that the expert was privy to
Sound trial procedure helps mitigate these risks. Foremost, the district court should “encourage the gоvernment to present the expert and lay testimony separately” because the risk of confusion is greater for “[a] witness who careens from one type of testimony to the other.” Jett, 908 F.3d at 269. When the expert portion of an agent‘s testimony begins, the court should “allow the government to lay its foundation and establish the agent‘s qualifications,” then “instruct the jury that the testimony it is about to hear is the witness‘s opinion based on training and experience, not firsthand knowledge, and that it is for the jury to determine how much weight, if any, to give that opinion.” Id. at 269–70.
Here the district court did not follow the procedures we outlined in Jett. That almost certainly happened because the government failed to adhere to its obligation to identify Meyer as an expert in advance of trial. See
But the district court‘s error in Thomas‘s trial was not plain and so does not warrant reversal. Had the government disclosed and offered Special Agent Meyer as an expert, his testimony would have been unobjectionable. Meyer testified that he had 23 years’ experience in law enforcement, including with firearms and drug trafficking crimes. He had the rеquisite qualifications to inform the jury, based on his training and experience, how and why drug dealers often possess and use firearms. It is well-established that such testimony falls into the category of specialized knowledge (and thus expert opinion) and can help a jury determine whether a defendant like Thomas possessed a gun in furtherance of a drug crime. See United States v. Blount, 502 F.3d 674, 680 (7th Cir. 2007) (“The average juror does not know how a drug business is run, and to that extent [a law enforcement expert‘s] testimony was useful in showing the link between crack and guns.” (internal citations omitted)).
Even setting aside Meyer‘s testimony, the government had ample evidence to show that Thomas was using the firearms found in his car to facilitate his drug dealing. Detective Stephen Coleman testified at trial and explained the search he conducted of Thomas‘s car. He described opеning the glove compartment only to see two guns and a significant amount
We reached a similar conclusion in Jett, even though our review there was merely for an abuse of discretion. See 908 F.3d at 265. The district court did not follow the proper procedures for admitting dual-role testimony, but we nevertheless held that the error was harmless given the strength of the government‘s case. See id. at 270.
We follow suit here. Not only was the evidence against Thomas substantial, but he bears the more demanding burden of showing plain error to boot. On the evidence presented at trial, we cannot say that the district court‘s handling of Special Agent Meyer‘s dual-role testimony amounted to plain error under the demanding standard the Supreme Court announced in Olano. See 507 U.S. at 736.
III
Thomas next challenges the jury instructions on Count 2. In the ordinary course we review a district court‘s decision to give a jury instruction for an abuse of discretion, reversing “only if the instructions, taken as a whole, misled the jury.” United States v. Erramilli, 788 F.3d 723, 730 (7th Cir. 2015).
Again, Thomas did not raise his challenge below. Quite the contrary. His counsel told the district judge that he had “no objection” to the jury instructions, raising the question whether Thomas altogether waived appellate review. See United States v. Johnson, 874 F.3d 990, 1000 (7th Cir. 2017)
Thomas contends that the jury instructions wrongly conflated multiple provisions within
Thomas underscores that the jury received no instruction on what it meant to the possess a gun “in furtherance of” a drug offense—a statutory requirement mandating the showing of a “critiсal nexus between the particular gun at issue and
Imperfect as they were, the jury instructions were not so confusing or misleading as to warrant reversal under plain error review. To be sure, we agree that the more prudent approach is to include some elaboration on the meaning of the phrase “in furtherance of.” Better yet, the district court could have drawn on our court‘s pattern jury instructions, which expressly “rеcommend[] that courts instruct jurors on the meaning of ‘in furtherance of’ a crime of violence or drug trafficking crime.” PATTERN CRIMINAL JURY INSTRUCTIONS OF THE SEVENTH CIRCUIT at 242 (2012 ed.).
Still, we cannot say that leaving out the definition compromised Thomas‘s substantial rights. We observed in Castillo that the phrase “in furtherance of” has a plain meaning that “naturally and necessarily connotes more than mere presence or innocent possession; as its natural meaning suggests . . . it requires that the gun be possessed to further, advance or help
Nor was the district court‘s choice to define the terms “during” and “in relation to.” In United States v. Harvey, 484 F.3d 453 (7th Cir. 2007), we concluded that although an indictment was defective beсause it replaced “in furtherance of” with “in relation to,” the error did not warrant reversal because those phrases “are close enough in meaning that [the defendant] knew the essence of the charges he was facing” when he opted to plead guilty. Id. at 457. Our reasoning follows a similar path here: the jury was instructed to find Thomas guilty if he possessed a firearm “in furtherance of” the drug crime, a phrase with a readily understandable connotation. We cannot conclude that the superfluous inclusion of definitions for “during” and “in relation to“—terms with a similar significance to “in furtherance of“—distracted the jury from its task to determine whether Thomas used the guns to advance his drug dealing.
Even where a jury instruction altogether omits an element of a crime, we decline to reverse under plain error review if the jury heard overwhelming evidence proving that element. See United States v. Maez, 960 F.3d 949, 964 (7th Cir. 2020). Not only was the error here less grave, but the state‘s case was strong. The jury heard unmistakable evidence showing a connection between the guns recovered from Thomas‘s car and the methamphetamine he planned to deliver to the government informant—the two guns and drugs literally fell out of
IV
Finally, Thomas urges us to consider the dual-role testimony and the jury instructions in combination. In assessing whether a conviction should be upheld despite two or more mistakes mаde at trial, we assess cumulative error, or “the harm done by the errors considered in the aggregate.” United States v. Santos, 201 F.3d 953, 965 (7th Cir. 2000). To show cumulative error, Thomas had to establish that “considered together along with the entire record, the multiple errors so infected the jury‘s deliberation that they denied [him] a fundamentally fair trial.” United States v. Groce, 891 F.3d 260, 271 (7th Cir. 2018).
Whether we consider them individually or together, the errors at Thomas‘s trial do not undermine his firearm conviction. The jury had more than enough evidence to find beyond
Accordingly, we AFFIRM.