United States v. Thomas , 189 F. App'x 174 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5189
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY AUGUSTUS THOMAS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-05-568)
Submitted: May 31, 2006 Decided: July 5, 2006
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. Reginald I. Lloyd, United
States Attorney, Alfred W. Bethea, Jr., Assistant United States
Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Following a jury trial, Anthony Augustus Thomas was
convicted of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(2000), and possession of a firearm in furtherance of a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A) (2000). Thomas’
sole contention on appeal is that the district court erred in
denying his motion for a new trial on the ground that the jury
considered evidence not admitted at trial. Finding no abuse of
discretion, we affirm.
The criminal charges underlying Thomas’ conviction arose
from his armed robbery of a convenience store in September 2004.
During deliberations, the jury’s foreperson discovered a four-inch
pocketknife while examining a piece of evidence — a pair of pants.*
After returning the verdict, the foreperson informed court
personnel that he discovered the pocketknife, which had not been
admitted into evidence. The district court then apprised the
attorneys of the situation, and briefly questioned the foreperson
on the record about this discovery. The foreperson made two
statements pertinent to this appeal: he described the circumstances
surrounding the jury’s discovery of the knife (the foreperson found
*
Thomas does not contend, nor does the record demonstrate,
that the pocketknife was intentionally planted in the pants, which
were properly admitted and before the jury as part of the body of
evidence. It is clear that the parties’ failure to discover the
pocketknife prior to tendering the pants to the jury was purely
accidental.
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the knife, showed it to the jury, then put it away; the jury did
not discuss it further), and he attested that the knife did not
affect the jury’s verdict. Thomas filed a post-verdict motion for
a new trial, pursuant to Federal Rule of Criminal Procedure 33,
arguing that he was prejudiced by the jury’s discovery of the
unadmitted pocketknife and by the district court’s questioning of
the foreperson. After the parties briefed the issue, the district
court denied Thomas’ motion, finding that discovery of the
pocketknife had no impact on the jury’s verdict.
Pursuant to Rule 33(a), a trial court may grant a motion
for a new trial “if the interest of justice so requires.” Whether
to grant a Rule 33 motion is squarely within the trial court’s
discretion. United States v. Greene, 834 F.2d 86, 88 (4th Cir.
1987). This court reviews the denial of a motion for new trial for
abuse of discretion. United States v. Lentz, 383 F.3d 191, 219
(4th Cir. 2004).
Circuit precedent establishes that, when a jury considers
“prejudicial evidence that was not introduced at trial . . . the
defendant is entitled to a new trial.” United States v. Barnes,
747 F.2d 246, 250 (4th Cir. 1984). Although determining prejudice
requires assessing “whether there is a reasonable possibility that
the jury’s verdict was influenced by the material that improperly
came before it,” a presumption of prejudice arises when the jury
considers evidence not admitted at trial. Id. at 250-51 (internal
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quotations and citation information omitted). When such a
presumption arises, the government must rebut it by showing that
consideration of the improper material was harmless. Id. at 251.
Our review of the record convinces us that the strength
of the Government’s evidence against Thomas rebuts the presumption
of prejudice. At trial, the cashier present during the robbery
gave a very specific description of the robber; she testified that
the robber was a black man, approximately 5’6” tall, who was
wearing a wig, a white bandana, and a blue jumpsuit. She further
testified that the robber was carrying a bag and riding a blue
bicycle. A number of law enforcement officials testified to the
actions taken to apprehend the robber. Officer August of the
Darlington Police Department testified to pursuing a man fitting
this description, who was riding a blue bicycle. Officer August
nudged the suspect from his bicycle because he failed to comply
with the officer’s order to stop; a team of bloodhounds picked up
the suspect’s scent from the wig, and soon thereafter located the
suspect, later determined to be Thomas, hiding in a nearby carport.
The next day, law enforcement recovered a .357 Magnum near Thomas’
hiding spot. At trial, the cashier testified that this firearm was
similar to the one the robber used in that it was older and
partially rusted and that the recovered wig was the same wig the
robber had worn.
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Because the evidence against Thomas was compelling and
the pocketknife was not relevant to any of the charged offenses, we
conclude the district court did not abuse its discretion in denying
Thomas’ motion for a new trial. The district court’s questioning
of the foreperson does not affect our conclusion. The district
court’s inquiry into the factual circumstances of the jury’s
discovery of the knife was “was not only permissible but
necessary.” United States v. Cheek, 94 F.3d 136, 143 (4th Cir.
1996). Although we agree with Thomas that the foreperson’s
testimony about the knife’s effect on the jury’s verdict was
inadmissible as evidence concerning a jury’s “mental processes,”
id., we think that in light of the evidence against Thomas and the
foreperson’s description of the knife’s discovery, any error was
harmless.
Accordingly, we affirm Thomas’ conviction. Additionally,
we deny Thomas’ motion to file a pro se supplemental brief because
he is represented by counsel, and further deny the pending motion
to have his attorney dismissed because he is allegedly ineffective.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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