United States v. Michael Thomas ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4505
MICHAEL SHAWN THOMAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Jerome B. Friedman, District Judge.
(CR-97-445)
Submitted: April 30, 1999
Decided: May 24, 1999
Before WILKINS, WILLIAMS, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, James L. Trump, Assistant United
States Attorney, Thomas G. Connolly, Assistant United States Attor-
ney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Michael Shawn Thomas appeals from his convictions
after a jury trial for conspiracy to distribute crack cocaine, marijuana,
and PCP, in violation of 21 U.S.C. § 846 (1994); murder while
engaged in drug trafficking, in violation of 21 U.S.C. § 848(e) (1994);
murder in the course of a firearms offense, in violation of 18 U.S.C.A.
§ 924(j) (West Supp. 1999); possession with intent to distribute mari-
juana and crack cocaine and distribution of crack cocaine, in violation
of 21 U.S.C.A. § 841 (West Supp. 1998); and four counts of using or
carrying a firearm during and in relation to a drug trafficking crime,
in violation of 18 U.S.C.A. § 924(c) (West Supp. 1999). Finding no
error, we affirm the judgment of conviction.
Thomas first challenges the sufficiency of the evidence on the
§ 924(c) conviction which charged him with a firearm violation on or
around February 21, 1996. Viewing the evidence presented at trial in
the light most favorable to the Government, see Glasser v. United
States, 315 U.S. 60, 80 (1942), Shawn Shannon saw Thomas with a
TEC-9 (a semi-automatic weapon), a .38 caliber revolver, and another
gun, while they were driving around selling crack cocaine in February
of 1996. The guns were in a bag, where Thomas also stored money
he made that day from selling crack cocaine to Shannon and others.
When Shannon was dropped off at his home, he encouraged Thomas
to leave the guns with him, but Thomas stated that he needed the guns
because the situation was getting "hot." Thomas then placed the guns
in the car and left. When Thomas was arrested later that night, police
found a bag in the trunk, containing a 9 mm, a .38, ammunition, and
cash.
Thomas argues that there was no evidence that (1) he actively
employed the firearms, (2) the bag found in the trunk belonged to him
or that he was even aware of its presence, or (3) even assuming that
Thomas "carried the weapon," he did so in relation to a drug traffick-
ing crime. However, contrary to Thomas's assertion, the evidence was
sufficient to convict him. Thomas carried the guns with him in the car
throughout the day while he sold crack cocaine, and he stored his
drug money in the same bag with the guns. Furthermore, after drop-
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ping Shannon off, Thomas kept the guns with him for protection.
Because Thomas carried the guns in the car throughout the day, proof
of "active employment" or "use" was unnecessary. See United States
v. Mitchell, 104 F.3d 649, 652-54 (4th Cir. 1997). Further, while the
jury could reasonably have concluded that the bag found by the police
was indeed Thomas's bag, such a finding was not necessary for con-
viction, because sufficient evidence showed that Thomas carried the
weapons earlier in the day. Based on the foregoing, we find the evi-
dence sufficient to sustain Thomas's § 924(c) conviction.
Thomas next challenges his murder convictions for the killing of
Robert Willis. The evidence showed that Willis supplied Thomas with
marijuana and that Thomas thought that Willis was cheating him by
putting rocks in the marijuana and charging him for a greater weight.
The bulk of the testimony on this issue came from eyewitness
Lamonte Jones, a co-conspirator, who stated that he was in a car with
Thomas when Thomas led Willis to a deserted area and then shot him.
In addition, other co-conspirators testified that Thomas was upset
with and had threatened Willis and that Thomas admitted to the mur-
der after it occurred.
Thomas contends on appeal that Jones was an unreliable witness
and that there was not sufficient corroboration as to the remaining tes-
timony. However, an appellate court does not review the credibility
of witnesses. See United States v. Saunders, 886 F.2d 56, 60 (4th Cir.
1989). The jury had the opportunity to judge the demeanor of the wit-
nesses and apparently elected to credit their testimony. We will not
disturb this judgment. The testimony of Jones was sufficient, if
believed, to prove that Thomas shot and killed Willis. Because
Thomas does not challenge any other elements of proof on the murder
charges, we affirm these convictions.
Finally, Thomas challenges the denial of his motion for a mistrial.
Thomas contends that the prejudicial impact of inadvertently showing
an excluded photograph unfairly inflamed the jury. However, we find
that the photograph's prejudicial value was not substantial enough to
warrant a mistrial.
The subject photograph was of the gunshot wounds to Willis's
face. However, many other pictures of Willis's body were admitted
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without objection. While the subject photograph apparently had more
blood than the others, it strains credulity to believe that this picture
would have impacted the jury to any great degree, especially as the
district court found that it was shown for only a second. Finally, as
there was overwhelming evidence of Thomas's guilt on all charges,
we find that Thomas has failed to show prejudice from the denial of
his motion.
For these reasons, Thomas's convictions are affirmed. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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