United States v. Thomas

849 F.3d 906

UNITED STATES of America, Plaintiff-Appellee,

v.David Savoy THOMAS, Defendant-Appellant.

No. 16-2044

United States Court of Appeals, Tenth Circuit.

Filed February 24, 2017

Stephen P. McCue, Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant.

C. Paige Messec, Assistant United States Attorney (Damon P. Martinez, United States Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

Before TYMKOVICH, Chief Judge, SEYMOUR, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Defendant-Appellant David Savoy Thomas appeals from his conviction of four counts of robbery, 18 U.S.C. § 1951(a), following a jury trial. On appeal, he challenges (1) the sufficiency of the evidence on Count 1, (2) an in-court identification, and (3) the denial of his motion to sever the Count 1 robbery charge from the other robbery counts. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

Background

In December 2013, Mr. Thomas was charged with four counts of Hobbs Act robbery, which requires proof of an unlawful taking of property against another's will "by means of actual or threatened force, or violence, or fear of injury." 18 U.S.C. § 1951(b)(1). He was also charged with one count of using a firearm during a crime of violence. 18 U.S.C. § 924(c)(1)(A)(ii). According to the indictment, Count 1 occurred on May 1, 2010, at a McDonald's restaurant; Counts 2 and 3 occurred on August 10 and August 17, 2013, respectively, at the same Family Dollar store; and Count 4 occurred on October 19, 2013, at a Check 'n Go. Count 5 alleged that Mr. Thomas used a firearm during the Count 4 robbery. Each robbery occurred near the intersection of San Pedro and Lomas NE in Albuquerque, New Mexico, and involved someone entering a store and threatening or forcing an employee to provide money from a cash register.

Prior to trial, Mr. Thomas moved to sever Count 1 from the other counts, arguing that Count 1 was not properly joined with the remaining counts and, even if joinder was proper, that it would prejudice his defense. 1 R. 19–23. The district court denied the motion, finding joinder to be proper and that Mr. Thomas had not met his burden to show that severance was warranted. United States v. Thomas , 61 F.Supp.3d 1221, 1226–27 (D.N.M. 2014).

The case then proceeded to trial on March 30, 2015. The jury convicted Mr. Thomas on Counts 1–4 (the robbery offenses), but could not reach a verdict on Count 5 (the firearm offense). The district court later sentenced Mr. Thomas to 108 months of imprisonment, followed by three years of supervised release. The evidence underlying the convictions is discussed below, as pertinent.

Discussion

A. Sufficiency of the Evidence on Count 1

Mr. Thomas challenges the sufficiency of the evidence demonstrating force on Count 1. The government argues that plain error review applies because Mr. Thomas did not raise this specific challenge, but concedes that the review would be similar because insufficiency of the evidence generally meets the plain error test. Aplee. Br. at 17 (citing United States v. Rufai , 732 F.3d 1175, 1189 (10th Cir. 2013) ). Mr. Thomas made a general motion for a judgment of acquittal, Fed. R. Crim. P. 29, at the close of the government's case and at the end of defense testimony with respect to Count 1, and we conclude our standard of review is de novo. United States v. Johnson , 821 F.3d 1194, 1201 (10th Cir. 2016) ; see United States v. Kelly , 535 F.3d 1229, 1234–35 (10th Cir. 2008).

Violent force is required to sustain a conviction under the Hobbs Act. In Johnson v. United States , the Supreme Court defined violent force as "force capable of causing physical pain or injury to another person." 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). This requires more than the "slightest offensive touching" that may sustain a misdemeanor battery conviction, id. at 139, 130 S.Ct. 1265, but may "consist ... of only th[e] degree of force necessary to inflict pain—a slap in the face, for example," id. at 143, 130 S.Ct. 1265.

We view the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could find the element in question. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The McDonald's employee who was acting as a cashier during the robbery testified that the robber "bumped" him, got "aggress[ive]," and "hit" or "pushed [him] away" as he was working. 3 R. 212–13. At the time, the employee thought someone had gotten upset with him and pushed him. Id. at 213.

Mr. Thomas argues that a push is not enough under Johnson and that the witness never testified that he experienced any pain or injury. But the push here was not slight—it was an aggressive one. "Aggression" is derived from the Latin word "aggressio," which means "attack," and is defined as "a forceful action or procedure (as an unprovoked attack) esp. when intended to dominate or master." Merriam-Webster Collegiate Dictionary (11th ed. 2004). Reading the record in the light most favorable to the verdict, we conclude that aggressive pushing, as occurred here, is sufficient under Johnson . See, e.g. , United States v. Romo-Villalobos , 674 F.3d 1246, 1249–50 (11th Cir. 2012) (holding that the Florida crime of "resisting an officer with violence" requires more than de minimus force and therefore comports with Johnson ). We do not read Mr. Thomas's cases to suggest otherwise. See, e.g. , United States v. Gardner , 823 F.3d 793, 804 (4th Cir. 2016) ("North Carolina has defined common law robbery to encompass cases involving the use of minimal force, which does not satisfy the condition of ‘violent force’...."); United States v. Flores-Cordero , 723 F.3d 1085, 1088 (9th Cir. 2013) ("Under prevailing Arizona law, the use of minimal force is sufficient to constitute ‘resisting arrest,’ " and therefore does not meet the requirements of Johnson ).

We also reject Mr. Thomas's argument that proof of pain or injury is required. Johnson only provides that the nature of the force must be "capable of causing physical pain or injury." 559 U.S. at 140, 130 S.Ct. 1265 (emphasis added). Of course, one may experience pain or injury from the impact of an aggressive push, by falling down or coming into contact with a wall or other object. Thus, actual pain or injury is not required and the push in this case suffices.

B. In-Court Identification

Mr. Thomas also challenges witness Angela Montez's in-court identification on Count 2 that was admitted without judicial prescreening. He asserts this procedure violated his right to due process. Specifically, he argues that (1) the identification was unduly suggestive because he was the only African-American man at the defense table, (2) Ms. Montez had never previously been asked to identify the Count 2 robber, and (3) her in-court identification took place more than 19 months after the robbery. Our review of the identification procedure for compliance with the Constitution is de novo; the factual basis underlying the district court's decision is reviewed for clear error. United States v. Thompson , 524 F.3d 1126, 1135 (10th Cir. 2008).

The parties disagree whether due process requires the district court to make a reliability assessment to determine the admissibility of an in-court identification. At the heart of this dispute is whether the Supreme Court's decision in Perry v. New Hampshire , 565 U.S. 228, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012), extends to in-court identifications. In Perry , the defendant argued that the admission of an out-of-court identification violated his right to due process. The Supreme Court held that the identification was admissible because "the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement." Id. at 248, 132 S.Ct. 716.

Since Perry , other circuits have debated whether or not the Court's decision overruled circuit-level precedent requiring inquiries into the suggestiveness and reliability of in-court identifications. See, e.g. , United States v. Correa-Osorio , 784 F.3d 11, 17–22 (1st Cir. 2015) (noting the debate and rejecting the defendant's in-court identification argument under both Perry and the circuit's pre-Perry suggestiveness and reliability test); Lee v. Foster , 750 F.3d 687, 690–92 (7th Cir. 2014) (inquiring into the suggestiveness and reliability of an in-court identification even after Perry ). We find most persuasive the approach taken by the Eleventh Circuit in United States v. Whatley , where the court held that the Supreme Court's decision in Perry applies not only to pretrial identifications but also to in-court identifications. 719 F.3d 1206, 1214–17 (11th Cir. 2013). The Court in Perry expressly rejected a "rule requiring trial judges to prescreen eyewitness evidence for reliability any time an identification is made under suggestive circumstances." 565 U.S. at 240, 132 S.Ct. 716 ; see also Manning v. Patton , 639 Fed.Appx. 544, 548 (10th Cir. 2016) (citing Perry for the proposition that courts apply the "due process check" when law enforcement arranged the suggestive circumstances surrounding the eyewitness identification); United States v. Hill , 604 Fed.Appx. 759, 787 (10th Cir. 2015) (same).¹ Neither the question presented to the Court nor its holding is confined to pretrial identifications. See Perry , 565 U.S. at 236, 248, 132 S.Ct. 716. Rather, the Court referred generally to "eyewitness identification[s]," id. and expressly rejected prescreening for in- court identifications, id. at 244, 132 S.Ct. 716 ; Whatley , 719 F.3d at 1216.

Although we must adhere to prior precedent, there are exceptions, including en banc reconsideration or supervening Supreme Court authority. In re Smith , 10 F.3d 723, 724 (10th Cir. 1993) (per curiam). Accordingly, to the extent our prior precedent...