     17-4022-cr (L)
     United States v. Bernard Thomas
                                        UNITED STATES COURT OF APPEALS
                                            FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
     CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
     EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
     “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
     PARTY NOT REPRESENTED BY COUNSEL.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 20th day of March, two thousand nineteen.
 4
 5   PRESENT: DENNIS JACOBS,
 6            GERARD E. LYNCH,
 7                           Circuit Judges,
 8            JANET C. HALL,
 9                           District Judge.*
10
11   ————————————————————————
12
13   UNITED STATES OF AMERICA,
14
15                                              Appellee - Cross-Appellant,
16
17
18                                     v.
19                                                                        Nos. 17-4022-cr (L)
20                                                                             18-106-cr (XAP)
21   BERNARD THOMAS,
22
23                                              Defendant - Appellant - Cross-Appellee.
24
25
26   ————————————————————————
27
28   FOR APPELLANT - CROSS-APPELLEE:                         PETER J. TOMAO, Garden City, NY.
29


               *
           Judge Janet C. Hall, of the United States District Court for the District of
     Connecticut, sitting by designation.
 1   FOR APPELLEE - CROSS-APPELLANT:                  KEVIN TROWEL (David C. James, on the
 2                                                    brief), for Richard P. Donoghue, United
 3                                                    States Attorney, Eastern District of New
 4                                                    York, Brooklyn, NY.
 5
 6
 7          Appeal from the United States District Court for the Eastern District of New York

 8   (William F. Kuntz, Judge).

 9          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

10   AND DECREED that the judgment of the district court is VACATED and the case is

11   REMANDED for resentencing.

12          Bernard Thomas appeals from a judgment of conviction entered on December 15,

13   2017, by the United States District Court for the Eastern District of New York, sentencing

14   him principally to 51 months’ imprisonment and three years’ supervised release, after a

15   jury found him guilty of being a felon in possession of ammunition in violation of 18

16   U.S.C. §§ 922(g). The government cross-appeals, challenging the district court’s

17   conclusion that the enhanced sentencing provision of the Armed Career Criminal Act

18   (“ACCA”), 18 U.S.C. § 924(e)(1), does not apply to Thomas. We assume the parties’

19   familiarity with the facts, the procedural history, and the issues on appeal, which we

20   discuss only as necessary to explain our decision.

21          Thomas was originally tried on the theory that he possessed ammunition in the

22   form of a spent shell casing. Thomas, a police informant, claimed that, at the request of an

23   acquaintance, he had briefly safeguarded a gun that had been used in a shooting during an

24   apparent mugging attempt, and then retained the casing in order to turn it over to the


                                                  2
 1   police. After the jury was unable to reach a verdict, the government obtained a

 2   superseding indictment and altered its trial tactics, arguing at a second trial that Thomas

 3   was himself the shooter, and possessed ammunition in the course of the shooting.

 4   (Thomas was not, however, charged with the shooting itself.) The second jury found him

 5   guilty of being a felon in possession of ammunition.

 6          Thomas raises four challenges to his conviction, and argues that his sentence was

 7   both procedurally and substantively unreasonable.

 8   I. Thomas’s Claims of Trial Error

 9          First, Thomas argues that the district court abused its discretion when it

10   interviewed and then dismissed a juror during deliberations, after the government asserted

11   that one of its witnesses, a police detective, had heard the juror say “huh, liars,” loud

12   enough for the witness and other jurors to hear, during his testimony. App’x 394. Thomas

13   argues that the district court’s decision was an abuse of discretion, was based on

14   erroneous fact findings, and violated his constitutional right to a fair trial. We disagree.

15          Under Federal Rule of Criminal Procedure 24(c)(3), the district court is authorized

16   to dismiss a juror during deliberations and replace him or her with an alternate juror, so

17   long as deliberations begin anew. See, e.g., United States v. Delva, 858 F.3d 135, 158 (2d

18   Cir. 2017). “We review for abuse of discretion the district court’s handling of alleged

19   juror misconduct,” according the district court “broad flexibility, mindful that addressing

20   juror misconduct always presents a delicate and complex task.” United States v. Farhane,

21   634 F.3d 127, 168 (2d Cir. 2011) (internal quotation marks omitted). The standard for

                                                    3
 1   removing a juror under Rule 24(c) is “good cause.” Delva, 858 F.3d at 158. We review

 2   the factual findings underlying a district court’s decision to dismiss a juror for clear error.

 3   See, e.g., United States v. Baker, 262 F.3d 124, 130S31 (2d Cir. 2001) (deferring to the

 4   district court’s judgment in its dismissal of a juror for failure to deliberate).

 5          We find no abuse of discretion or clear error here. The district court acted

 6   reasonably in choosing to interview the juror after learning of possible misconduct, did

 7   not clearly err in finding ¯ given the similarities between the juror’s answers and the

 8   witness’s account ¯ that the juror had expressed an opinion about the case to fellow

 9   jurors in violation of the court’s instructions, and did not abuse its discretion in

10   determining that removing the juror was appropriate. While we can imagine other courses

11   of action that the district court might have taken, we identify no error in its actions.1

12          Second, Thomas contends that the evidence was insufficient to support the jury’s

13   finding that he was guilty of knowingly possessing ammunition. He does not, however,

14   argue that the evidence was insufficient to allow a reasonable jury to conclude that

15   Thomas shot the victim, and possessed ammunition in the course of doing so. Rather, he

16   argues that, as a matter of law, a “spent shell casing” is not ammunition within the

17   meaning of the statute, and that, as a matter of fact, Thomas did not know that a spent

18   shell casing was ammunition. That argument fails for two reasons. First, at the trial at

19   which Thomas was convicted, the government’s theory of the case was not that Thomas


     1
      The parties disagree about whether Thomas adequately raised his objections below; however,
     we need not resolve that dispute as we find no error or abuse of discretion even on the
     assumption that the issue was properly preserved for appeal.

                                                    4
 1   possessed a spent shell casing in the aftermath of the shooting, but rather that he

 2   possessed live ammunition when he shot the victim. Second, Thomas did not argue to the

 3   jury that he was unaware that a spent shell casing constituted ammunition; instead, he

 4   argued that he was operating as a police informant, and thus had either actual or apparent

 5   authority to possess the ammunition. Indeed, Thomas expressly conceded in closing that

 6   if he had possessed the spent shell casing without authority, it would be a crime. Gov’t

 7   App’x 90. Thus, his argument on appeal is both moot and waived.

 8          Third, Thomas argues the district court erred when, during the cross-examination

 9   of another police detective, it sustained the government’s objection to a question about

10   whether the acquaintance of Thomas’s, who Thomas contended had committed the

11   shooting, was also a police informant. We review a trial court’s evidentiary rulings

12   deferentially, reversing only for abuse of discretion. United States v. Quinones, 511 F.3d

13   289, 307 (2d Cir. 2007). We will find such abuse only where the evidentiary rulings are

14   “arbitrary and irrational.” Id. at 308, quoting United States v. Dhinsa, 243 F.3d 635, 649

15   (2d Cir. 2001). Even where the district court has erred, we will not order a new trial if the

16   error is harmless. United States v. Cadet, 664 F.3d 27, 32 (2d Cir. 2011). Here, the district

17   court acted neither arbitrarily nor irrationally when it limited the cross-examination.

18          The district court reasonably accepted the government’s argument that the possible

19   prejudice to public safety that could arise from questioning about the identities of police

20   informants outweighed the slight probative value of such questions. The defense theory

21   was that Thomas’s acquaintance was the shooter, but that the police had chosen to frame


                                                   5
 1   Thomas to protect the acquaintance, who was an informant. The defense offered little

 2   basis for its assertion that the acquaintance was an informant, nor any coherent reason

 3   why the police would choose to frame one informant, Thomas, to protect another. Since

 4   the theory that the question was designed to further was entirely speculative, and lacked a

 5   basis in the record, its probative value was minimal. Moreover, the trial evidence, in the

 6   form of hospital records, conclusively established that Thomas’s acquaintance was

 7   undergoing tests in a hospital emergency room at the precise time of the shooting. We

 8   therefore conclude that the district court did not err, and that even if it did, any error was

 9   harmless.

10          Fourth, Thomas argues that the district court erred in its jury instructions. The

11   language to which he now objects, however, was included in the instructions only at the

12   request of the defense. The argument has therefore been affirmatively waived.

13          In instructing the jury, the district court first defined ammunition, in language

14   taken verbatim from the statutory definition of the term in 18 U.S.C. § 921(a)(17)(A):

15                 Ammunition is ammunition or cartridge cases, primers,
16                 bullets, or propellant powder designed for use in any firearm.
17
18   After then defining the element of possession, including the requirement that the jury find
19
20   knowing possession, the court went on to say that:
21
22                 To satisfy this element, you must also find that the defendant
23                 knowingly possessed the ammunition. That means that he
24                 possessed the ammunition purposely and voluntarily and not
25                 by accident or mistake. It also means that he knew that the
26                 shell casing was ammunition.
27

                                                    6
 1   App’x 384. Thomas objects to the italicized language, arguing again that mere shell

 2   casings are not ammunition.

 3          That language, however, was included in the instructions at the request of the

 4   defense. The government’s requests to charge did not contain any such language. The

 5   defense originally suggested that the court, after defining the knowing possession

 6   requirement in terms substantially similar to the language quoted above, should add the

 7   following sentence: “It also means that he knew the shell casing was ammunition, as we

 8   commonly use the word.” The court’s proposed charge adopted that suggestion in its

 9   entirety, but at the charge conference, the government objected. The district court, noting

10   the tension between first giving the jurors the statutory definition of ammunition, and then

11   later instructing the jurors to apply whatever meaning the word has “as we commonly use

12   [it],” opted to delete that phrase, leaving only the first half of Thomas’s proposed

13   instruction. Accordingly, as noted above, the addition to the proposed charge, as actually

14   given to the jury, read only: “It also means that he knew that the shell casing was

15   ammunition.” App’x 384. While the defense objected to the excision of the phrase “as we

16   commonly use the word,” it never suggested that its proposed language be deleted entirely

17   if the modifying clause was stricken.

18          We review challenges to jury instructions de novo, finding an instruction to be

19   erroneous where “it misleads the jury as to the correct legal standard or does not

20   adequately inform the jury of the law.” United States v. Lange, 834 F.3d 58, 75 (2d Cir.


                                                   7
 1   2016) (internal quotation marks omitted). To the extent that Thomas objects to the

 2   deletion of the phrase “as we commonly use the word,” we find no such error. The

 3   omission does not mislead the jury as to the correct legal standard. Indeed, it is more

 4   likely that the inclusion of the phrase would have done so, as the requested phrase is, to

 5   say the least, in tension with the previously-given statutory definition of ammunition.

 6          To the extent that Thomas now argues that the first half of the instruction ¯ “[i]t

 7   also means that he knew the shell casing was ammunition”¯ was erroneous, that

 8   argument is foreclosed. We need not address whether a spent shell casing is distinct from

 9   a “cartridge case,” which is expressly included in the statutory definition. Even if the

10   former term refers to something that does not come within the statutory definition, the

11   reference to a “shell casing” was invited by Thomas when he requested the instruction.

12   “The law is well established that if, as a tactical matter, a party raises no objection to a

13   purported error, such inaction constitutes a true waiver which will negate even plain error

14   review.” Quinones, 511 F.3d at 321 (internal quotation marks omitted).

15   II. Thomas’s Sentencing Arguments

16          Thomas appeals his sentence on both procedural and substantive reasonableness

17   grounds. Procedurally, he argues that the district court erred by failing adequately to

18   explain its reasons for imposing an above-Guidelines sentence, by stating in the written

19   judgment and the accompanying statement of reasons different Guidelines ranges and

20   legal findings than those adopted during the oral sentencing proceeding, and by including


                                                    8
 1   in the judgment a number of special conditions of supervised release that were not alluded

 2   to during the oral sentencing.

 3          Substantively, Thomas argues that the 51-month sentence is unreasonable, and

 4   challenges several of the special conditions of release ¯ including, inter alia, the

 5   requirements that he submit to a “psychosexual evaluation” and that he comply with sex

 6   offender registration requirements ¯ on the ground that they are not reasonably related to

 7   the offense or to Thomas’s history or characteristics.

 8          Because of our disposition of the government’s cross-appeal, discussed below, we

 9   need not address these arguments at this time. Whether the prison sentence imposed is

10   substantively unreasonable, whether the district court adequately explained its sentence,

11   and whether the sentence must be vacated by reason of inconsistencies between the

12   written and oral judgments are moot points, since we are in any event remanding for

13   resentencing, and the court will have the opportunity to correct any arguable procedural

14   errors. Similarly, with respect to the special conditions of supervised release, the judge

15   will now have an additional opportunity, with the benefit of fully-developed arguments by

16   the defense, to reconsider those conditions and, if he continues to believe that they are

17   appropriate, to explain why that is so.

18   III. The Government’s Cross-Appeal

19          The government argues that the district court erred in finding the enhanced penalty

20   provision in the ACCA inapplicable to Thomas’s case. The ACCA mandates a minimum


                                                   9
 1   sentence of fifteen years in prison for a defendant convicted of violating § 922(g) who has

 2   three or more prior convictions for, inter alia, “violent felon[ies].” 18 U.S.C. § 924(e)(1).

 3   Developments in the law since the sentencing render some of the district court’s

 4   conclusions no longer viable. Accordingly, a remand for resentencing is required.

 5          At the time of sentencing, Thomas had been previously convicted of three New

 6   York state felonies ¯ first degree robbery, attempted third degree robbery, and first

 7   degree sexual abuse. The district court concluded that “at least two” of those offenses ¯

 8   sexual abuse in the first degree and attempted robbery in the third degree ¯ “do not

 9   qualify as crimes of violence” for purposes of the ACCA. App’x 525.2 Recent case law,

10   not available to the district judge at the time of sentencing, renders one of those

11   conclusions incorrect, and the other questionable.

12          Cases decided after Thomas’s sentencing make clear that all degrees of robbery

13   and attempted robbery under New York law constitute violent felonies within the

14   meaning of the ACCA. United States v. Thrower, 914 F.3d 770, 777 (2d Cir. 2019)

15   (holding that New York robbery and attempted robbery in any degree are violent felonies

16   under the ACCA); see also Stokeling v. United States, 139 S. Ct. 544, 555 (2019)

17   (holding Florida robbery to be a violent felony under the ACCA); cf. United States v.



     2
      The district court did not address whether first degree robbery is a violent felony under the
     ACCA. It did, however, suggest, in response to a question from the probation officer, that first
     degree robbery is not a crime of violence for the purposes of Sentencing Guideline § 2K2.1 –
     although the written guideline calculation later attached to the judgment was premised on the
     conclusion that it is. App’x 532.

                                                     10
 1   Pereira-Gomez, 903 F.3d 155, 166 (2d Cir. 2018) (holding that New York robbery and

 2   attempted robbery in any degree is a crime of violence under the identically-worded

 3   career offender provisions of the Sentencing Guidelines).

 4          The situation is less clear with respect to sexual abuse in the first degree. That

 5   offense is “divisible” in that it covers several types of conduct, defined in distinct

 6   statutory subdivisions. The government, relying on the Certificate of Disposition

 7   (“COD”) entered in Thomas’s conviction for that offense, contends that Thomas was

 8   convicted under New York Penal Law § 130.65(1), which requires “forcible compulsion.”

 9   Thomas, however, argues that the COD is unreliable. See United States v. Green, 480

10   F.3d 627, 633S34 (2d Cir. 2007) (discussing possible computer anomalies that would

11   automatically specify subdivision 1 on the COD form where a statute contained multiple

12   subdivisions and no subdivision appeared on underlying documents).

13          The district court did not resolve this dispute. Rather, it concluded that even

14   subdivision 1 did not define a violent felony under the categorical approach, because

15   under New York law, “forcible compulsion” could be found in circumstances that in the

16   court’s view did not constitute force, such as “where a victim was hedged in by the

17   coordinated actions of those around her and then subjected to unwanted sexual touching.”

18   App’x 526, citing New York cases. Although this very argument has now been

19   discredited in the context of robbery, see Pereira-Gomez, 903 F.3d at 165S66, we have

20   never addressed it in a published opinion in the context of sexual abuse in the first degree.


                                                   11
 1          We need not do so now, however, in light of the possibility that Thomas was in

 2   fact convicted of that offense under the terms of another subdivision that the government

 3   does not contend would constitute a violent felony. If Thomas is correct about that

 4   question, he would have only two prior convictions for violent offenses, and the ACCA

 5   would not apply.3 If, however, the government can establish, consistent with the

 6   procedures set forth in Green, that his conviction was for violation of subdivision 1, the

 7   district court would be required to reconsider its conclusion about whether a violation of

 8   that provision is a violent felony, in light of the recent case law discussed above.

 9          We therefore remand the case for the district court to determine whether Thomas

10   was convicted under subdivision 1 and, if so, whether in light of Pereira-Gomez,

11   Thrower, and Stokeling, New York Penal Law § 130.65(1) qualifies as a violent felony

12   under the ACCA, and for resentencing in light of its conclusions on these points.

13          For the foregoing reasons, we find no error with regard to Thomas’s conviction,

14   but VACATE the judgment of the district court and REMAND for resentencing.

15
16                                        FOR THE COURT:
17                                        Catherine O’Hagan Wolfe, Clerk of Court
18
19




     3
      U.S.S.G. § 2K2.1, in contrast, mandates an increase in the base offense level where even one
     prior felony conviction is a crime of violence.

                                                   12
