United States v. Thomas

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-4001

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WILLIAM QUINZEL THOMAS,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (CR-02-20)

Argued: March 18, 2005 Decided: April 27, 2005

Before WILLIAMS, MOTZ, and DUNCAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

ARGUED: Krysia Carmel Nelson, Charlottesville, Virginia, for
Appellant. William Frederick Gould, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville,
Virginia, for Appellee. ON BRIEF: John L. Brownlee, United States
Attorney, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

William Quinzel Thomas, convicted by a jury of conspiracy to

knowingly and intentionally distribute and possess with intent to

distribute 50 grams or more of cocaine base or crack, appeals. He

asserts pretrial, trial, and sentencing errors. We vacate his

sentence and remand the case for resentencing; in all other

respects, we affirm.

I.

Around 10:00 am on September 8, 2001, Officer Mark Warner of

the Front Royal Police Dept. responded to a dispatch report of drug

dealing on Pine Street in an area of Front Royal known to be a

hotbed of drug activity. The tip identified four black males in a

tan van. When Officer Warner arrived in the area, he saw three

black males in a gold SUV parked in front of 327 Pine Street, a

house reputed to be the site of frequent drug-dealing. He

approached the vehicle and asked the three men to identify

themselves. They each gave the officer a name, one of which turned

out to be false, but said they had no identification. None

admitted to being the driver of the vehicle.

A man then exited 327 Pine Street. He identified himself as

William Thomas, said he was the driver of the vehicle, and gave

Officer Warner a Maryland driver’s license. Officer Warner called

dispatch to check the license through the Maryland DMV, which

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reported that it was suspended. Still another person then came out

of the house and said that he owned the car. When Officer Warner

asked him for identification, he said he had none, but he gave a

name and date of birth, which the officer ran through the DMV.

After the name and date of birth did not match any records in

Maryland, the individual admitted he had lied, and gave the Officer

his driver’s license, which identified him as Arnold Jackson. In

response to Jackson’s question, Officer Warner informed Jackson

that he was investigating a report of drug dealing. (JA 74).

Jackson denied that he was dealing, and proposed that the officer

search the car.

The three men in the car exited it. Officer Warner found

$1500 in the glove compartment and an electronic scale with white

residue on it. Officer Warner then searched all five of the men.

He found over $2500 in various pockets of Jackson’s pants, over

$350 on another of the men, and less than $10 each on Thomas and

the remaining two men. Warner then took photographs of each of the

men and told them they were free to go.

On March 11, 2003, authorities arrested Thomas and charged

him, pursuant to 21 U.S.C.A. § 846 (West 1994), with conspiracy to

distribute and possess with intent to distribute 50 grams or more

of crack in violation of 21 U.S.C.A. § 841(a)(1) (West 1994).

Before trial, Thomas applied, pursuant to 18 U.S.C.A. 3006A(e)

(West 2000 & Supp. 2004), for the court to appoint a medical

3
expert. The court denied the request. Thomas also moved to

suppress evidence obtained as a result of the September 8, 2001

search; the court denied that motion, as well.

At trial, several convicted, crack-using co-conspirators --

Charles Hackley, Patrick Robinson, Michael Robinson, Barry

Thompson, Aurelio Lopez, and Percola Fitzhugh -- identified and

testified against Thomas. Authorities had apparently shown each of

them the September 8 photograph Officer Warner had taken of Thomas.

Thomas objected to the in-court identifications, asserting that the

out-of-court identifications were impermissibly suggestive, but the

district court overruled his objections. In addition, Thomas

unsuccessfully objected to admission into evidence of car rental

records that purported to show that the gold SUV, had been rented

to Jackson’s wife.

After a three day trial, the jury convicted Thomas of the

charged conspiracy. The district court found that Thomas was

responsible, as a member of the conspiracy, for at least 500 grams

of crack, and therefore sentenced him under the then-mandatory U.S.

Sentencing Guidelines to 330 months in prison, 60 months supervised

release, and a $100 special assessment.

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 II.

Thomas argues that the district court erred in two pretrial

rulings: (1) denial of his request to appoint a medical expert and

(2) denial of his suppression motion. Both arguments fail.

A.

Thomas sought authorization to obtain a medical expert to

testify on the effect of drug addiction on perception and memory,

in order to attack the credibility of the six drug addicts who

testified against him.

Federal law entitles indigent defendants to expert services

that are “necessary for adequate representation.” 18 U.S.C.A.

3006A(e)(1). We review for abuse of discretion a district court’s

decision regarding the necessity of the services. United States v.

Hartsell, 127 F.3d 343, 349 (4th Cir. 1997). “To show reversible

error in a district court’s refusal to appoint an expert, a

defendant must demonstrate that the court’s refusal was prejudicial

to his defense.” United States v. Perrera, 842 F.2d 73, 77 (4th

Cir. 1988).

In this case, Thomas has not demonstrated prejudice from

denial of his request. As the Government notes, Thomas’ counsel

ably cross-examined the witnesses on their addiction and their

memory. Moreover, the court instructed the jury that “the

testimony of one who is shown to have used addictive drugs during

the period of time about which he testified . . . must always be

5
examined and weighed . . . with greater care and caution than the

testimony of ordinary witnesses.”

Furthermore, each of the testifying co-conspirators were well-

acquainted with Williams. The Robinsons had known Thomas since

childhood; Hackley saw Thomas “every time [he] would come down to

Front Royal” and bought from him repeatedly; and Fitzhugh and Lopez

were familiar with Thomas because they had seen him several times.

In light of this evidence of familiarity, the cross-examinations,

and the court’s instruction, it is particularly unlikely that lack

of expert testimony on the effect of crack on memory prejudiced

Thomas.

B.

Thomas also challenges the denial of his motion seeking to

suppress all evidence gathered by Officer Warner on September 8,

2001, in front of 327 Pine Street. He maintains that Officer

Warner illegally stopped the SUV and so the fruit of this illegal

stop must be suppressed.

He argues that Officer Warner’s initial questioning was a

seizure and that it was unsupported by reasonable suspicion. A

seizure occurs when, “in view of all of the circumstances

surrounding the incident, a reasonable person would feel he was not

free to leave.” California v. Hodari D., 449 U.S. 621, 628 (1991)

(quoting United States v. Mendenhall, 446 U.S. 544, 555 (1980)

(opinion of Stewart, J.)). Thomas contends that the fact that

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Warner “accused Thomas and Jackson of dealing drugs out of the

vehicle” and then took Thomas’ driver’s license and “did not

immediately return it” indicate that Warner’s behavior constituted

“a show of authority sufficient to make it apparent that [Thomas]

[was] not free to ignore [Warner] and proceed on his way.” United

States v. Gray, 883 F.2d 320, 322 (4th Cir. 1989) (internal

quotation marks and citation omitted).

But Gray, which outlines factors courts have examined in

determining whether an officer has made that show of authority does

not assist Thomas. Gray does teach that two factors that bear

examination are (1) an officer’s statement that he “positively

suspect[s] [the defendant] of illegal activity” and (2) an

officer’s failure to promptly return requested identification. Id.

at 322-23.

Contrary to Thomas’ contentions, he produced evidence of

neither of these factors. Officer Warner never stated that he

“positively suspected” Thomas of illegal activity. Rather, the

Officer said, in response to co-conspirator Jackson’s question,

that the police had “received a call, a complaint that there was

possible drug dealing going on through [the] vehicle.” And, Thomas

makes no argument that Officer Warner did not “promptly return”

Thomas’ identification, rather, he complains that it was not

“immediately return[ed].” Brief of Appellant at 26. However,

there is no indication that Officer Warner retained the license any

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longer than necessary to determine its validity. See United States

v. Analla, 975 F.2d 119, 124 (4th Cir. 1992) (noting that keeping

a license for the amount of time necessary to check it with the

dispatcher does not convert an encounter with police into a

seizure).

Moreover, since the rental records show that Thomas was not an

authorized driver of the rental car, he had no reasonable

expectation of privacy in the vehicle, and thus cannot challenge

the legality of Officer Warner’s search of the vehicle. See United

States v. Wellons, 32 F.3d 117, 119 (4th Cir. 1994). Indeed, even

in the absence of the rental records evidence, it is clear Thomas

could not have been a legally authorized driver of the car, because

he did not have a valid driver’s license.

Finally, it is undisputed that Jackson, who said he owned the

car, and whose wife actually rented the car, both consented to

Officer Warner’s search of the vehicle. That search revealed an

electronic scale with “white residue” on it and $1500. Only after

this material was discovered did Officer Warner search Thomas and

take his picture. At that point, the search was supported by

reasonable suspicion.

III.

Thomas also challenges two trial rulings. Specifically, he

argues that the district court erred in permitting six in-court

8
identifications of him and admitting the car rental records. These

challenges, too, are meritless.

A.

The district court overruled Thomas’ objection that the in-

court identifications of Thomas were based on impermissibly

suggestive out-of-court identifications. In the out-of-court

identifications, the witnesses had been shown a single picture of

Thomas or a series of pictures, of which Thomas’ was one, laid out

one at a time.1

The district court addressed the objection only once, prior to

Hackley’s testimony, and found that Hackley’s identification was

based on Hackley’s familiarity with Thomas and was therefore

independent of the out-of-court identification. The extent to

which a witness knew Thomas is a factual question reviewed for

clear error. We review the district court’s legal conclusions

regarding the admissibility of in-court identifications de novo.

United States v. Burgos, 55 F.3d 933, 941 (4th Cir. 1995).

However, the party challenging admissibility bears the burden of

1
Thomas repeatedly asserts in his brief that the officer who
showed the pictures to the witnesses asked them, “What can you tell
me about this guy’s drug dealing?” Brief of Appellant at 9, 36,
40, 43. However, no witness testified to that sort of leading
question. Rather, Thomas’ counsel characterized the question that
way when she cross-examined Hackley. Investigator Coffman, the man
who interviewed the witnesses, simply testified, “I put the picture
down and just said, do you know this person.”

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proof. United States v. Johnson, 114 F.3d 435, 441 (4th Cir.

1997).

An eyewitness identification at trial following a pretrial

identification by photograph will be suppressed “only if the

photographic identification procedure was so impermissibly

suggestive as to give rise to the very substantial likelihood of

irreparable misidentification.” Simmons v. United States, 390 U.S.

377, 348 (1968). We engage in a two-step analysis, first

determining whether the pretrial identification was impermissibly

suggestive; and, only if it was, assessing whether the

identification was nevertheless reliable based on the totality of

the circumstances. Johnson, 114 F.3d at 441.

The use of a single photograph is disfavored. See, e.g.,

Manson v. Braithwaite, 432 U.S. 98, 117 (1977); Simmons, 390 U.S.

at 383. However, in Burgos, we noted that, if a witness knows the

defendant personally, “the chance of misidentification from a . .

. suggestive photo display is virtually non-existent.” 55 F.3d at

942; see also United States v. Morsley, 64 F.3d 907, 917 (4th Cir.

1995). That is precisely the situation here.

The Government introduced evidence that Hackley had known

Thomas since 2001 and had dealings with him repeatedly when Thomas

came to Front Royal (JA 225, 239). Patrick and Michael Robinson

had known Thomas since they were children and lived in the same

neighborhood. Patrick had bought crack from Thomas seven or eight

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times, and Michael had repeatedly seen Thomas dealing drugs and had

bought crack from Thomas twice in Front Royal and once in

Washington, D.C. Percola Fitzhugh apparently had the beginnings of

a romantic relationship with Thomas and purchased cocaine from him.

Barry Thompson bought crack from Thomas, then drove Thomas to the

store and took some of Thomas’ crack to sell. Aurelio Lopez, who

knew Thomas through Thomas’ brother Jackson, had seen him “on

different occasions” and bought crack from him once.

Thus, as in Burgos, the “in-court identifications . . . were

based on far more than a brief glimpse, five minutes of study, or

an overly suggestive photograph display.” 55 F.3d at 942. Rather

“[c]lear and convincing evidence exists that the . . . in-court

identifications derived from an independent origin.” Id. at 942-3.

B.

Thomas argues that Enterprise Car Rental records showing,

inter alia, that he was not an authorized driver of the gold SUV

searched on September 8, 2001, should not have been admitted

because they were not properly authenticated.

Federal Rule of Evidence 902(11) sets forth the requirements

for self-authentication of a business record. A domestic record of

regularly conducted business activity must be accompanied by a

declaration certifying that the record

(A) was made at or near the time of the occurrence of the
matters set forth by, or from information transmitted by,
a person with knowledge of those matters; (B) was kept in
the course of the regularly conducted activity; and (C)

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 was made by the regularly conducted activity as a regular
practice.

Federal Rule of Evidence 902(11).2

The Advisory Committee Notes state that the rule is satisfied

by a declaration that comports with 28 U.S.C. § 1746, which states

that an unsworn declaration “in writing of [declarant] which is

subscribed by him, as true under penalty of perjury, and dated” is

sufficient. 28 U.S.C.A. § 1746 (West 1994).

Here, the text of the typewritten declaration met the

requirements of both FRE 902(11) and § 1746 verbatim. Originally,

it was signed and dated by Linda Nelson, who also notarized it. On

the version admitted into evidence, Linda Nelson’s name and

signature had been crossed out, and the declaration was signed and

dated by Timothy Zaff. It does not appear to have been re-

notarized. However, § 1746 does not require a notarized statement.

See 28 U.S.C. § 1746; United States v. Moore, 24 F.3d 624, 626 n.3

2
The rule also requires the party offering the evidence to
provide written notice to the adverse parties of the intention to
use the document and to make the document available to them so that
they can challenge it. Federal Rule of Evidence 902(11). On
appeal, Thomas contends that he was not given sufficient notice of
these records. Thomas raised this objection at the suppression
hearing, and the court marked the records for identification
purposes only, but at trial, Thomas objected to the records solely
because of asserted improper notarization. Even if Thomas had
preserved his objection as to alleged lack of notice, the objection
is meritless. Thomas had notice of the intended use of the records
on the afternoon of Friday, August 15, 2003, at the latest. The
trial began on Monday, August 18, 2003. The records were offered
and entered into evidence on Tuesday, August 19, 2003. Thomas had
sufficient time to test the adequacy of the foundation in the
declaration.

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(4th Cir. 1994) (noting that FRAP 4(c) is satisfied by a

declaration complying with 28 U.S.C. § 1746 or by a notarized

statement); Summers v. United States Dept. of Justice, 999 F.2d

570, 573 (D.C. Cir. 1993) (noting that requiring notarization

“would render § 1746 essentially a dead letter and end-run

Congress’ clear intent of sparing individuals the cost and hassle

of notarizing routine submissions”). Furthermore, even if the

declaration did not strictly comply with Rule 902(11) or § 1746,

any error in its admission would be harmless given the very

collateral nature of the rental records to the crime charged

against Thomas in this case.

IV.

Finally, Thomas challenges his sentence. We agree that his

sentence was imposed in violation of the Sixth Amendment. See

United States v. Booker, 125 S. Ct. 738, 746 (2005). Accordingly,

we vacate Thomas’ sentence and remand this matter for resentencing.

See United States v. Hughes, 401 F.3d 540, 556 n.15 (4th Cir.

2005).

Because Thomas raised his Sixth Amendment contention for the

first time on appeal, it is subject to review for plain error only.

See id. at 547. As set forth in United States v. Olano, the plain

error mandate is satisfied if: (1) there was error; (2) it was

plain; and (3) it affected the defendant’s substantial rights. 507

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U.S. 725, 732 (1993). If these conditions are met, we may then

exercise our discretion to notice the error, but only if it

“seriously affects the fairness, integrity or public reputation of

judicial proceedings.” Id. (internal quotation marks and

alteration omitted). The Olano conditions are satisfied here.

First, the prison term imposed on Thomas constituted error

under Booker. See 125 S. Ct. at 755-56 (holding Sixth Amendment

contravened when sentencing court, acting pursuant to Guidelines,

imposes sentence greater than maximum authorized by facts found by

jury alone). Under the then-mandatory Guidelines regime, the jury

verdict finding Thomas guilty of conspiracy to distribute 50 grams

or more of crack cocaine supported an offense level of 32,

resulting in a sentencing range of 168 to 210 months. However, the

court’s findings that Thomas was responsible for more than 500

grams of crack and that he carried a firearm increased Thomas’

offense level to 38, yielding a sentencing range of 324 to 405

months. Pursuant to Booker, the court erred in relying on its own

fact-finding to impose a sentence of more than 210 months. See

Hughes, 401 F.3d at 547 (recognizing that imposition of sentence

“in part based on facts found by the judge . . . constituted

error”).

Second, although Thomas’ Sixth Amendment contention was

foreclosed by our precedent at the time of his sentencing, Booker

has since “abrogated our previously settled law,” rendering the

14
error plain. Hughes, 401 F.3d at 548. And third, the error was

prejudicial, in that the sentence imposed on Thomas -- 330 months

-- was greater than the 210-month maximum authorized by the facts

found by the jury alone. See id. at 548-49.

Finally, to affirm Thomas’ sentence despite the error would

seriously affect the fairness, integrity, or public reputation of

these judicial proceedings. In the wake of Booker, the Guidelines

are to be treated as advisory (rather than mandatory), and

sentences that fall within the statutorily prescribed range are

reviewable only for reasonableness. Id. at 546 (citing Booker, 125

S. Ct. at 765-68). The record before us does not indicate what

sentence the court would have imposed on Thomas had it exercised

its discretion under 18 U.S.C. § 3553(a) and treated the Guidelines

as merely advisory. Although it is possible that Thomas will

receive the same sentence on remand, “[t]his possibility is not

enough to dissuade us from noticing the error.” Hughes, 401 F.3d

at 556. We, therefore, vacate Thomas’ sentence, and remand for

resentencing consistent with Booker and its progeny.

V.

Pursuant to the foregoing, we affirm Thomas’ conviction,

vacate his sentence, and remand for resentencing.

AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

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