United States v. Julian Thomas , 933 F.3d 685 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1356
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JULIAN THOMAS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 16-CR-00044-wmc-1 — William M. Conley, Judge.
____________________
ARGUED MARCH 27, 2019 — DECIDED AUGUST 1, 2019
____________________
No. 18-1519
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES THOMPSON,
Defendant-Appellant.
____________________
2 Nos. 18-1356 & 18-1519
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 16-CR-00044-wmc-2 — William M. Conley, Judge.
____________________
SUBMITTED MARCH 27, 2019 — DECIDED AUGUST 1, 2019
____________________
Before EASTERBROOK, KANNE, and HAMILTON, Circuit
Judges.
HAMILTON, Circuit Judge. A federal grand jury indicted de-
fendants Julian Thomas and James Thompson for robbing a
bank. Count One charged them with armed bank robbery in
violation of 18 U.S.C. § 2113(a) and (d). Count Two charged
them with using and carrying a firearm by brandishing it dur-
ing and in relation to a crime of violence in violation of 18
U.S.C. § 924(c). A joint trial was scheduled but then delayed—
first at Thomas’s request, and then again because Thompson’s
counsel faced an irreconcilable conflict of interest because of
a newly discovered witness for the government. Shortly be-
fore the delayed trial, however, Thompson pleaded guilty and
agreed to testify for the government against Thomas. Thomas
went to trial. The jury found him guilty on both counts and
also returned a special verdict finding that Thomas aided
Thompson’s brandishing of a firearm in the bank robbery.
The district court sentenced Thomas to thirteen years in
prison for the bank robbery and a consecutive seven years (the
statutory minimum) for aiding and abetting Thompson’s
brandishing.
Both defendants have appealed, but Thompson’s attorney
has filed an Anders brief explaining that he does not believe
Thompson has any viable arguments on appeal. We agree and
Nos. 18-1356 & 18-1519 3
dismiss that appeal, No. 18-1519.1 Thomas contends on appeal
that certain evidence and argument at his trial were improper,
that the delay between his indictment and his trial violated
the Speedy Trial Clause of the Sixth Amendment, and that the
jury instructions for 18 U.S.C. § 924(c) were erroneous.
Thomas failed to raise all but one of these issues in the district
court. We affirm his convictions and sentence in No. 18-1356.
I. Factual & Procedural Background
Thomas and Thompson were convicted of robbing the
Peoples Community Bank in Plain, a small town in Sauk
County, Wisconsin. The evidence at Thomas’s trial showed
that he had been planning a bank robbery for some time.
Thompson so testified, and he explained that Thomas had
told him they would enter the bank and Thompson would
monitor the bank’s tellers while Thomas would enter the
vault with the bank’s manager. They would then escape with
a white female getaway driver.2
1 Thompson does not challenge the validity of his guilty plea, which
allowed him to avoid a mandatory life sentence. He was sentenced to ten
years for the bank robbery and a consecutive seven years for brandishing
the firearm. Neither his counsel nor we see any arguable procedural or
substantive error in the sentence. Thompson received his counsel’s Anders
brief and submitted no response identifying any issues he wished to pur-
sue on appeal, as he could have under Circuit Rule 51(b).
2 Robert Lynn, who was in the Dane County Jail with Thomas in
March 2014, testified that Thomas had told him he planned to rob a bank
in Plain by “pistol-whip[ping] some old ladies” to “keep the first respond-
ers busy.” James Britton testified that as early as 2012 or 2013, Thomas had
talked of his plan to rob a bank in a small town. Britton also testified that
Thomas had solicited his help to find an accomplice and that Britton had
connected Thomas with Thompson and received some of the robbery pro-
ceeds.
4 Nos. 18-1356 & 18-1519
That is what actually happened. On the day of the robbery,
Thomas and Beth Manbauman (who was being paid in her-
oin) picked Thompson up at a bus stop. Thomas provided
Thompson with a mask and loaded handgun. Thompson put
the gun in his pocket. As Thompson and Thomas waited in an
alley outside the bank, Thompson removed the handgun
from his pocket. The two then ran into the bank. Both wore
masks. Thompson pointed the gun at the bank’s tellers.
Thompson got two tellers to empty their cash drawers while
Thomas forced the bank’s manager to open the vault. They
fled with approximately $60,000 in a car driven by Manbau-
man.
The government introduced evidence showing that on the
day of the robbery, both Thompson and Manbauman had
communicated with a particular telephone number. The num-
ber was registered to “Frank Smith” in Irvine, California, but
Thompson testified that the number was listed in his tele-
phone as belonging to “Juice,” which was Thomas’s nick-
name. Other witnesses testified that Thomas went by the nick-
name “Juice.” The government was aware that Thomas would
try to impeach Thompson’s credibility, so the government
called Thomas’s probation officer, Michael Ellestad, who tes-
tified that he had used that same telephone number to contact
Thomas while supervising him between November 2014 and
June 2015.
The government also introduced evidence that Thomas
had a friend register as the straw owner of a used Mercedes
Benz automobile that he bought days after the robbery. Before
trial, the court ruled that the government could introduce a
recording of a telephone call Thomas made while in pretrial
detention in which he said the car was worth $30,000. The lead
Nos. 18-1356 & 18-1519 5
case detective testified on cross-examination by the defense
that he had listened to that telephone call.
Thomas did not call any witnesses but introduced three
exhibits. The defense theory was that James Britton, not
Thomas, committed the robbery with Thompson. During
closing arguments, according to Thomas, the prosecutor mis-
led the jury by repeatedly using the word “you” while ex-
plaining the reasonable-person standard for “intimidation”
under 18 U.S.C. § 2113(a). Without an objection from Thomas,
the district court corrected the government in front of the jury,
explaining that the inquiry is an objective one.
The district court instructed the jury on the elements of the
two counts against Thomas. Only the instructions for the fire-
arm charge in Count Two are at issue in this appeal. The court
instructed that a verdict of guilty on an aiding-and-abetting
theory of liability required proof beyond a reasonable doubt
that Thomas “knew before the bank robbery that James
Thompson was going to use, carry, or brandish a firearm dur-
ing and in relation to the bank robbery charged in Count 1,”
and that “[o]nce [Thomas] knew this, he intentionally facili-
tated” it. The court instructed the jurors that a guilty verdict
would require that they “agree on at least one of these three
ways”—using, carrying, or brandishing—“that James
Thompson employed the firearm during the bank robbery.”
The court included a special verdict form asking whether
Thomas aided Thompson’s brandishing of a firearm, explain-
ing: “The reason you’re being asked this question is to make
certain that even if you found someone guilty of Count 2 …
you all agree brandishing occurred.” This finding was neces-
sary to apply the statutory enhancement for brandishing. See
18 U.S.C. § 924(c)(1)(A)(ii). When the jury asked a question
6 Nos. 18-1356 & 18-1519
while deliberating, the court told them that “aid,” “aids,” or
“aiding” have their ordinary meanings.
The jury found Thomas guilty of both counts and an-
swered yes to the special verdict question on brandishing. The
district court sentenced Thomas to thirteen years in prison for
the bank robbery charge and a consecutive sentence of seven
years (the statutory minimum) for aiding and abetting
Thompson’s brandishing of the firearm.
II. Discussion
Thomas raises five issues on appeal. Three relate to evi-
dence and argument at trial: (A) the admission of Thomas’s
probation officer’s testimony that he used a particular tele-
phone number to contact Thomas; (B) the admission of the
telephone call Thomas made while in pretrial detention say-
ing that he purchased a car worth $30,000 after the bank rob-
bery; and (C) the government’s use of the word “you” instead
of “reasonable person” in its closing argument to describe the
inquiry for intimidation. The other two issues are (D) the
Speedy Trial Clause claim and (E) a challenge to the jury in-
structions for accomplice liability for brandishing a firearm
during and in relation to a crime of violence.
When a defendant has objected to the admission of evi-
dence, we review the district court’s decision for an abuse of
discretion. United States v. Quiroz, 874 F.3d 562, 569 (7th Cir.
2017); United States v. Gorman, 613 F.3d 711, 717 (7th Cir. 2010).
We generally review the legal accuracy of jury instructions de
novo, while deferring to a district court’s discretion in the spe-
cific phrasing. See United States v. McClellan, 794 F.3d 743, 753
(7th Cir. 2015). But when a defendant fails to object to a po-
tential evidentiary error or jury instruction in the district
Nos. 18-1356 & 18-1519 7
court, these forfeited objections are reviewed only for plain
error. See United States v. Ambrose, 668 F.3d 943, 963 (7th Cir.
2012) (evidence); United States v. Lawson, 810 F.3d 1032, 1040
(7th Cir. 2016) (jury instructions); Fed. R. Crim. P. 52(b) (“A
plain error that affects substantial rights may be considered
even though it was not brought to the court’s attention.”). On
plain-error review, we may reverse if: (1) an error occurred,
(2) the error was plain, (3) it affected the defendant’s substan-
tial rights, and (4) it seriously affected the fairness, integrity,
or public reputation of the proceedings. United States v. Olano,
507 U.S. 725, 732–38 (1993); United States v. Pierson, 925 F.3d
913, 919 (7th Cir. 2019). In the district court, Thomas objected
only to the admission of the telephone call discussing the
$30,000 car, so we review the district court’s decision to admit
it under an abuse of discretion standard. We review all other
issues only for plain error.
A. Testimony of the Probation Officer
The government called Thomas’s probation officer to tes-
tify that he used a specific telephone number to contact
Thomas in supervising him on probation. The Federal Rules
of Evidence sharply restrict admission of an accused defend-
ant’s prior convictions. E.g., Fed. R. Evid. 404, 609. The re-
strictions are designed to ensure that a defendant is convicted
based on the evidence relevant to the charged offenses, not a
supposed propensity to commit crimes based on evidence of
prior convictions. See United States v. Gomez, 763 F.3d 845,
855–56 (7th Cir. 2014) (en banc); United States v. Beck, 625 F.3d
410, 416 (7th Cir. 2010). We have repeatedly cautioned trial
courts to consider carefully the introduction of previous con-
victions. See, e.g., Beck, 625 F.3d at 416, citing United States v.
Taylor, 522 F.3d 731, 732–33 (7th Cir. 2008).
8 Nos. 18-1356 & 18-1519
In this case, there was not an explicit statement that
Thomas was previously convicted of a crime, but we assume
jurors would understand that a person on probation has pre-
viously been convicted of a crime. The testimony of Officer
Ellestad that he used the telephone number to contact Thomas
could establish Thomas’s identity and connection to the tele-
phone number, which is a permissible purpose under Rule
404(b). Yet, in response to a proper objection, the district court
would still need to weigh its probative value against the risk
of unfair prejudice under Rules 403 and 404(b). Taylor, 522
F.3d at 732–33.
Without an objection, the district court did not plainly err
in admitting Officer Ellestad’s testimony. The testimony was
relevant to show that the telephone number belonged to
Thomas and that he used the number to coordinate with
Thompson and Manbauman. Thomas disputed his involve-
ment in the planning and execution of the robbery. He also
disputed Thompson’s testimony explaining that he commu-
nicated with Thomas using that telephone number. The cor-
roborating testimony of Thomas’s probation officer—includ-
ing his job title, which established that he clearly knew how
to get in touch with Thomas—had significant probative value.
When a defendant objects to evidence that will put the fact
of a prior conviction before the jury, the trial judge should
consider whether other evidence might serve the same pur-
pose and should weigh probative value against the risk of un-
fair prejudice. See United States v. Loughry, 660 F.3d 965, 974
(7th Cir. 2011) (“availability of other means of proof is an ap-
propriate factor to consider in determining the relevance of an
item of evidence”), citing Old Chief v. United States, 519 U.S.
172, 182–84 (1997). If Thomas had been willing to stipulate
Nos. 18-1356 & 18-1519 9
that the telephone number was his, there would have been no
reason to introduce his probation officer’s testimony. But
Thomas disputed whether the number belonged to him. That
was his right, of course, but the government was entitled to
offer evidence to corroborate Thompson’s testimony tying
Thomas to the telephone number.
Also, the risk of unfair prejudice here was reduced. The
jury was already aware through other, proper evidence that
Thomas had a criminal history. The defense itself referred to
Thomas’s criminal history multiple times. The defense noted
Thomas’s prior incarceration with government witness Rob-
ert Lynn in its opening statement. See Trial Tr. I-120 (“You’ll
also hear that Detective Sabol finds out a couple months after
the robbery that Mr. Thomas was in jail with a guy named
Robert Lynn. … They were in jail together the spring be-
fore.”). Thomas did not object to the introduction of Lynn’s
testimony later in the trial. The defense’s opening statement
also acknowledged:
During this trial you will learn that Mr. Thomas
is not a squeaky clean guy. We are not going to
try to pretend he’s something he’s not. He hangs
out with unsavory characters. Sometimes he
sells drugs to get by. Sometimes he steals credit
cards, forgery, makes his money that way, stuff
like that.
In closing argument, the defense reiterated:
I know that Mr. Thomas is not a great guy. …
That’s not what makes him guilty of robbery.
Because those other bad acts, that evidence that,
like, “Hey, man, you’re with some unsavory
10 Nos. 18-1356 & 18-1519
folks. You’re a heroin dealer. You know, youʹre
the kind of guy that steals iPads and does credit
card fraud. You are a despicable human be-
ing”—if the charge was you’re a despicable hu-
man being, go for it, guilty, guilty, but it’s not.
Given these references from the defense, Officer Ellestad’s
reference to being Thomas’s probation officer was not un-
fairly prejudicial and did not outweigh the probative value of
his testimony. See Fed. R. Evid. 403. Thomas’s criminal past
“was already before the jury,” and the likelihood that this as-
pect of Officer Ellestad’s testimony “had any effect on the jury
is negligible.” United States v. Courtright, 632 F.3d 363, 370 (7th
Cir. 2011). We doubt there was any error, and there certainly
was no plain error, in admitting this testimony.
B. The $30,000 Car Telephone Call
Before trial, the government informed the court that it
would offer a recording of a telephone call Thomas made
while in pretrial detention in which he said that a Mercedes
Benz he bought shortly after the robbery was worth $30,000.
Thomas objected to this evidence, so we review the court’s
decision to admit it for an abuse of discretion. United States v.
Cunningham, 462 F.3d 708, 712 (7th Cir. 2006). While this is not
the plain-error standard, this standard is still deferential.
United States v. Ozuna, 561 F.3d 728, 738 (7th Cir. 2009).
This issue has become a bit muddled factually. Shortly be-
fore oral argument on appeal, the government filed a letter
explaining that the portion of this telephone call referring to
the supposed $30,000 value of the car was “unintentionally
deleted … from the recordings presented to the jury.” The ju-
rors heard only the portions of the recording where Thomas
Nos. 18-1356 & 18-1519 11
described the Mercedes as a “luxury car” that should run on
premium gas. In its opening statement, however, the govern-
ment told the jury that it would hear about “jail phone calls”
in which Thomas said that the Mercedes was “all paid for and
that it cost him $30,000.” Later in the trial, the defense on
cross-examination asked the lead case detective: “You heard
in a telephone call that Mr. Thomas said the car was worth
$30,000, correct?” The detective answered “Yes.” Since the
challenged $30,000 statement was never actually played, the
jury heard about it only in the government’s opening and the
defense’s cross-examination of the detective. These discrep-
ancies were not raised in the district court. We believe the
most prudent way to proceed in this appeal is to review the
district court’s ruling to admit the $30,000 statement as if the
statement had been included in the recording played for the
jury as part of the evidence.
The district court did not abuse its discretion in deciding
to admit this evidence. Thomas argues that the admission of
this recording was cumulative because other evidence al-
ready indicated that he bought the Mercedes Benz shortly af-
ter the bank robbery. But Thomas would not stipulate to the
value of the car being $30,000, and at trial he asked questions
of witnesses suggesting, and argued in closing, that the value
was much less.3 The government wanted to introduce this
statement because $30,000 was roughly half of the proceeds of
the bank robbery. The value of the car was disputed and
somewhat relevant, and Thomas’s statement was not
3 While questioning the detective, Thomas noted that the car had
149,800 miles on it and “had been shot up”—suggesting that “a car that’s
been shot by a gun tends to depreciate in value” and would not be worth
$30,000. We express no opinion on the actual value of the car.
12 Nos. 18-1356 & 18-1519
cumulative because it was the only evidence of the supposed
$30,000 value of the car.
Thomas also argues that the reference to the “jail phone
call” was unfairly prejudicial, but for reasons similar to those
discussed above regarding his probation officer, the reference
to his pretrial detention would have added little if anything
to what the jury already knew about him. We have explained
that a defendant “may have been somewhat prejudiced” by
the admission of recordings of telephone calls he made while
awaiting trial, but “the occasional reference to the fact that
[the defendant] had at some point been in jail” while awaiting
trial is unlikely “to undermine the presumption of innocence
and the defendant’s right to a fair trial.” United States v. John-
son, 624 F.3d 815, 821–22 (7th Cir. 2010).
As with Officer Ellestad’s testimony, discussed above, if
Thomas had stipulated to the supposed $30,000 value of the
car, the government would not have had a good reason to in-
troduce this evidence. See Loughry, 660 F.3d at 974. The dis-
trict court gave Thomas the opportunity to so stipulate, but he
refused—again, as he was perfectly entitled to. But without a
stipulation, this recording was the government’s only evi-
dence as to the supposed $30,000 value of the car. The value
of the car was disputed, and the jail telephone call was neither
cumulative nor unfairly prejudicial. The district court did not
abuse its discretion by deciding to allow evidence of
Thomas’s statement that the Mercedes was worth $30,000.
C. “You” in the Government’s Closing Argument
For Count I—the bank-robbery offense—the government
was required to prove that the money was taken from the
bank “by force and violence, or by intimidation.” 18 U.S.C.
Nos. 18-1356 & 18-1519 13
§ 2113(a). “Intimidation exists when a bank robber’s words
and actions would cause an ordinary person to feel threat-
ened, by giving rise to a reasonable fear that resistance or de-
fiance will be met with force.” United States v. Gordon, 642 F.3d
596, 598 (7th Cir. 2011). The district court instructed the jury
to that effect: “the term ‘intimidation’ means to say or do
something that would make a reasonable person feel threat-
ened under the circumstances.”
In its closing argument, the government used language
describing this standard sometimes as objective and some-
times as subjective—referring sometimes to a “reasonable
person” but also to “you,” arguably asking the jurors to think
about how they themselves would have felt. The district court
firmly corrected the prosecutor in front of the jury: “This is
the second time you violated the golden rule. It’s not for you
to decide what you personally would feel. It is what a reason-
able person would feel, and I don’t want you to do it again.”
The government apologized and explained to the jury: “So the
judge is right. It’s not what—it’s the reasonable person stand-
ard, and you have to do the reasonable person standard.”
Even if the prosecutor’s language may have been im-
proper, the court immediately corrected it. Thomas raised no
objection, and he was not deprived of a fair trial. See United
States v. Common, 818 F.3d 323, 331 (7th Cir. 2016) (court must
first determine “whether the remarks by the prosecutor were
improper when viewed in isolation,” and if so, the court will
then “evaluate them in the context of the entire record and
determine whether defendant was deprived of a fair trial.”)
(citation and internal quotation marks omitted). We have ex-
plained: “As a general matter, improper comments during
closing argument rarely rise to the level of reversible error,
14 Nos. 18-1356 & 18-1519
and considerable discretion is entrusted to the district court
to supervise the arguments of counsel.” United States v. Wil-
son, 985 F.2d 348, 353 (7th Cir. 1993) (citation and internal quo-
tation marks omitted); see also United States v. Berg, 640 F.3d
239, 253 (7th Cir. 2011).
There was no abuse of discretion here, let alone a plain er-
ror. Lawyers sometimes are not as precise as they should be
when giving extemporaneous closing arguments. Even with-
out an objection, trial judges have the power to intervene if
they believe that language has strayed too far from the
straight and narrow, as the judge did here. To determine the
effect of prosecutorial comments on the fairness of the trial,
we consider: “(1) the nature and seriousness of the alleged
misconduct; (2) whether the defense invited the prosecutor’s
statements; (3) whether the jury instructions adequately ad-
dressed the matter; (4) whether the defense had an oppor-
tunity to respond to the improper remarks; and (5) the weight
of the evidence against the defendant.” United States v. Klemis,
859 F.3d 436, 442 (7th Cir. 2017). This minor misstatement of
the standard, which Judge Conley corrected immediately, did
not deprive Thomas of his right to a fair trial. The jury instruc-
tions used the proper standard, and, given the evidence that
Thompson brandished a gun to terrify the robbery victims,
nuances about the standards for intimidation were unlikely to
have affected the verdict.
D. Speedy Trial
The Sixth Amendment guarantees the accused “the right
to a speedy and public trial.” In determining whether a pre-
trial delay violates the Speedy Trial Clause, we consider: “(1)
the length of the delay, (2) the reason for the delay, (3) the de-
fendant’s assertion of his speedy trial right, and (4) the
Nos. 18-1356 & 18-1519 15
prejudice to the defendant caused by the delay.” United States
v. Koller, 956 F.2d 1408, 1413 (7th Cir. 1992), citing Barker v.
Wingo, 407 U.S. 514, 530 (1972). Thomas claims that he was
denied this right because his trial occurred almost eighteen
months after his indictment. He contends that his convictions
should therefore be vacated. Thomas did not raise this consti-
tutional argument in the district court, so again we review
only for plain error. See, e.g., United States v. O’Connor, 656
F.3d 630, 643 (7th Cir. 2011).4
“Delays of more than one year are considered presump-
tively prejudicial,” but the presumption may be rebutted. Id.
The delays here were for legitimate reasons, and Thomas is
hard-pressed to point us to any actual prejudice he suffered.
Thomas concedes that 281 days of the delay are not attributa-
ble to the government and are not an issue. This period in-
cludes the 161 days from his indictment until Thomas himself
filed an unopposed motion to move the trial date. It also in-
cludes the next 120 days, from Thomas’s motion to move the
trial date until the conflict of interest arose with Thompson’s
counsel. The period at issue is the following 242 days, from
the date of the hearing on the conflict, when the district court
denied Thomas’s request to keep his February 2017 trial date,
until the date of his trial (October 16, 2017). Thomas seeks to
attribute these 242 days of delay to the government.
This eight-month delay was unfortunate but justified. An
issue arose when the government sought to question a wit-
ness who was also represented by Thompson’s counsel, cre-
ating an irreconcilable conflict of interest. The district court
4
Thomas objected to postponing the trial, but he did not raise a Sixth
Amendment challenge.
16 Nos. 18-1356 & 18-1519
accepted the government’s judgment that the prospective wit-
ness’s testimony was important. The postponement was nec-
essary for Thompson to obtain new counsel, and the court
viewed the delay as “nobody’s fault,” but rather “one of those
irreconcilable conflicts” that required a continuance. We
agree. While unfortunate, this sort of delay sometimes just
happens with multiple defendants.
Thomas objected to the continuance and sought a trial sep-
arate from Thompson without further delay. That would have
been a permissible response to the problem, but the govern-
ment responded with a legitimate objection of its own, saying
that it could not “put the [bank] tellers through two trials,”
given their psychological trauma. The district court “easily”
determined that given the “nature of the government’s wit-
nesses,” it would not put them through two trials. The gov-
ernment also explained that the delay was not ideal for the
government itself because the bank-teller eyewitnesses, who
had been traumatized by the robbery, were hoping to get the
trial over with. These were all legitimate considerations in de-
ciding how to solve an unexpected problem with no ideal so-
lution.
We recognize that the delay meant that Thomas spent an
additional eight months in pretrial detention. But the Su-
preme Court in Barker v. Wingo found that a total of ten
months of detention before trial did not rise to the level of se-
rious prejudice. 407 U.S. at 530 & 534; see Koller, 956 F.2d at
1414–15 (finding no Sixth Amendment violation where ac-
cused spent months in pretrial detention while government
witness recovered from heart surgery). Thomas has failed to
demonstrate any significant impairment in his defense as a
result of the delay. He speculates that, but for the delay,
Nos. 18-1356 & 18-1519 17
Thompson might not have decided to plead guilty and agree
to testify against him. Perhaps, but we have explained that the
fact that “the government was able to strengthen its case
against [the defendant] during the delay … is not relevant to
the prejudice analysis.” United States v. Gearhart, 576 F.3d 459,
463 (7th Cir. 2009). The delay here did not violate the Speedy
Trial Clause of the Sixth Amendment.
E. Jury Instructions
Finally, Thomas argues that we should vacate his seven-
year sentence on Count Two for aiding and abetting the bran-
dishing of a firearm during and in relation to a crime of vio-
lence under 18 U.S.C. § 924(c)(1)(A)(ii) because the court erred
in its jury instructions.5 Thomas contends that the jury was
not adequately instructed on the government’s burden to
prove he had advance knowledge that Thompson would
brandish a firearm during the robbery. Thomas did not raise
this issue in the district court, so he faces an “uphill battle”
under plain-error review. See United States v. Wheeler, 540 F.3d
683, 689 (7th Cir. 2008). Regardless, the jury instructions here
were not erroneous.
Section 924(c) provides that “any person who, during and
in relation to any crime of violence or drug trafficking crime
5 A “crime of violence” is defined as “an offense that is a felony and—
(A) has as an element the use, attempted use, or threatened use of physical
force against the person or property of another, or (B) that by its nature,
involves a substantial risk that physical force against the person or prop-
erty of another may be used in the course of committing the offense.” 18
U.S.C. § 924(c)(3)(A) & (B). The Supreme Court has now invalidated sub-
paragraph (B)—the residual clause—as unconstitutionally vague. United
States v. Davis, 139 S. Ct. 2319, 2336 (2019). That decision does not affect
this case. The bank-robbery count is covered by subparagraph (A).
18 Nos. 18-1356 & 18-1519
… uses or carries a firearm,” is subject to a five-year statutory-
minimum consecutive sentence. 18 U.S.C. § 924(c)(1)(A)(i) &
(D)(ii). The minimum consecutive sentence is increased to
seven years “if the firearm is brandished.” § 924(c)(1)(A)(ii).
Under 18 U.S.C. § 2, a defendant who “aids, abets, counsels,
commands, induces or procures its commission, is punishable
as a principal.” To apply the brandishing enhancement to
Thomas, the jury needed to find beyond a reasonable doubt
that Thomas knew in advance not only that Thompson would
be carrying a firearm but also that he would be brandishing
it. United States v. Armour, 840 F.3d 904, 911 (7th Cir. 2016).
The jury instructions here properly conveyed the govern-
ment’s burden to prove advance knowledge of brandishing to
trigger the seven-year statutory-minimum sentence.
Thomas’s main argument is that the district court did not re-
peat the advance knowledge requirement in the instructions
on the special verdict form. But the special verdict form tied
its question directly to the instructions for Count Two, which
properly included the advance knowledge requirement. A
reasonable juror would not have understood this special ver-
dict form to have dispensed with the advance knowledge re-
quirement set forth clearly in the instructions for Count Two.
The point of the special verdict form was to make sure there
was unanimity on brandishing (as opposed to simply using
or carrying). In no way did the form take away anything from
the instructions to Count Two. It merely added this additional
safeguard. The district court did not err in instructing the jury,
let alone plainly err.
Thompson’s appeal (No. 18-1519) is DISMISSED. The dis-
trict court’s judgment in Thomas’s case (No. 18-1356) is
AFFIRMED.