                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 16-1360
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                                  BLAIR THOMAS, JR.,
                                         Appellant
                                    ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                    (D.C. Criminal Action No. 2-14-cr-00096)
                   District Judge: Honorable Gerald A. McHugh
                                 ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   March 13, 2017
                                  ______________

            Before: GREENAWAY, JR. and SHWARTZ, Circuit Judges, and
                        SIMANDLE, Chief District Judge.

                                   (Filed: July 18, 2017)
                                     ______________

                                       OPINION**
                                     ______________

       
         The Honorable Jerome B. Simandle, Chief Judge of the United States District
Court for the District of New Jersey, sitting by designation. Judge Simandle assumed
senior status on June 1, 2017.
       **
         This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.

       After a four-day federal jury trial, Blair Thomas, Jr. was convicted of multiple

robbery and firearm counts. On appeal he argues that the District Court erred in denying

both his motion for a mistrial and his motion to suppress physical evidence. He also

argues that his convictions for using and carrying a firearm during a crime of violence are

invalid. For the reasons that follow, we will affirm the District Court’s judgment of

conviction.

I.     FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       A.     Factual Background

              1.     Attempted Robbery of the Yeadon Post Office

       On the morning of January 22, 2014, a man entered the post office in Yeadon,

Pennsylvania. The post office was empty, save for a postal clerk at the counter. When

the man walked up to the counter, the postal clerk noticed a waxy, tan substance covering

the man’s face, along with a mustache, a pair of glasses, and a hat.

       The man then demanded ten $1,000 money orders, and presented the clerk with a

note saying that he had a gun. The clerk bolted out of the post office, not knowing “if

there was a gun or not.” SA 8. The man left, empty-handed. Surveillance cameras

captured images of the man.




                                             2
                2.     Attempted Robbery of the Darby Post Office

         Later that same morning, a man entered the post office in Darby, Pennsylvania, a

town neighboring Yeadon. This man also wore a tan mask, in addition to a grey hooded

sweatshirt and grey sweatpants.

         He approached the counter and demanded $10,000 in money orders. When the

clerk asked for identification, the man lifted up his shirt, pulled out a gun, and pointed it

at the clerk. The clerk was “petrified.” SA 25. But a customer and a postal carrier soon

entered the lobby and the man fled.

                3.     Robbery of the Wells Fargo Bank

         The next morning, a man in a tan mask, a pair of sunglasses, and a hat entered a

Wells Fargo Bank in Springfield, Pennsylvania, a town in the same county as Yeadon and

Darby.

         He handed a note to the greeter at the door, announcing that this was a robbery.

The man then demanded that the tellers put money in his duffel bag and escort him to the

bank vault. The tellers stuffed some bills in the duffel bag but refused to take him to the

bank vault. Security cameras captured the robbery.

                4.     The Investigation

         Sean McStravick, the postal inspector assigned to investigate the robberies, rolled

the three crimes into one investigation. Based on an anonymous tip, McStravick

contacted Jeremy Oneail, owner of an online mask making company. Oneail recognized

the mask on both the Yeadon Post Office robber and the bank robber as the “Raj” mask.
                                               3
His transaction records showed that on December 29, 2013, he sold one of his masks—a

Raj mask—to “Blair Thomas, 136 Hirst Ave., Landsowne, Pennsylvania.” SA 296–297.

McStravick used this information to obtain a federal search warrant.

       About a week after the attempted robbery of the Yeadon Post Office, postal

inspectors executed a warrant at the 136 Hirst Avenue residence.1 A black BMW

approached the residence at the same time as the inspectors. One of the inspectors, Rick

Link, approached the BMW and yelled “Police, let me see your hands.” SA 253. The

driver did not comply. Link then saw the driver’s arm move down toward the gearshift.

He feared that the driver would run him over.2 The car moved, according to Link, about

three to five feet before it stopped. Another postal inspector then pulled the driver from

his seat. The driver was Blair Thomas, Jr.

       The postal inspectors arrested Thomas and removed the following items from the

house: (1) a United States Postal Service box containing a mask from Oneail’s company;

(2) a .45 caliber Ruger semi-automatic pistol with two magazines, one inside the weapon

with seven rounds; (3) a black knit hat; (4) grey sweatpants; and (5) $3,000 in cash. The

postal inspectors also removed a grey hooded sweatshirt, a pair of grey sweatpants, three

pairs of sunglasses, and a notebook from the black BMW, pursuant to a warrant. The



       1
        The postal inspectors later verified that this was the residence of Thomas’s
mother. This was also the address listed on Thomas’s driver’s license.
       2
        The defense objected during this portion of Link’s testimony but the District
Court held that Link could testify to what he feared.

                                             4
imprinted handwriting on the cover of the notebook read “This is a robbery. I have a

gun. Stay calm and print ten money orders, $1,000.” SA 278.

       Meanwhile, Thomas waived his right to remain silent at the police station and

agreed to speak with the postal inspectors. He wrote a confession, admitting to the

following: he committed the two attempted robberies at the post offices and the robbery

at the bank; he bought the Raj mask online using PayPal; he used the mask and the gun

located at the 136 Hirst Avenue residence in the robberies; and he used the mask in all of

the robberies, but only used the gun at the post offices.

       B.      Procedural History

       A grand jury returned a six-count indictment charging Thomas with two counts of

attempted robbery of a postal employee, in violation of 18 U.S.C. § 2114(a); two counts

of using and carrying a firearm during a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1); one count of bank robbery, in violation of 18 U.S.C. § 2113(a); and one

count of possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1).

       The District Court on the eve of trial denied Thomas’s motion to suppress both the

evidence seized from the 136 Hirst Avenue residence and the black BMW as well as the

written, signed confession.

       At trial, the jury heard testimony from, among others, the postal clerks and bank

employees whom Thomas had threatened, Oneail, McStravick, Link, a third postal


                                              5
inspector involved in the investigation, and a forensics expert. McStravick also read

Thomas’s written confession into the record.

       Before closing arguments, the government requested a jury instruction regarding

consciousness of guilt, based on the testimony that Thomas initially disregarded Link’s

command and that the black BMW rolled toward Link. The District Court denied the

request, and the prosecutor made no mention of the BMW rolling toward Link in her

closing argument.

       But the defense counsel did dwell on the testimony that the BMW rolled forward,

albeit couching the significance of the testimony by saying it did not “really make a

difference in the overall case itself.” App. 305. She went on to challenge Link’s and

McStravick’s accounts of the BMW rolling forward by saying “[t]hat’s not what

happened. That’s not what happened. But why try to infuse that into this case. We

know it didn’t happen. You know why it didn’t happen . . . .” App. 306. And she

explained why the testimony was “just irresponsible”:

       You can’t do that in a case like this. Why? Why? Why when the government
       says they’ve got a mountain of evidence over here do they have to then infer that
       that young man was just trying to hurt a police officer? That’s just—it’s just not
       right.

App. 307.

       In rebuttal, the prosecutor responded to the defense counsel’s characterization of

the incident:

       And with regard to the testimony from . . . Inspector Link and Inspector
       McStravick about the car, there has been no evidence to suggest anything different
                                             6
       other than their testimony. So I ask you, ladies and gentlemen, to use your
       common sense like you would every day and evaluate their testimony because the
       defense has not presented any evidence and you haven’t seen any evidence that
       shows anything different about what happened. [Defense counsel] said we know
       that’s not what happened. Well, how do we know that without evidence?

App. 310 (emphasis added).3

       This prompted the defense counsel to request a meeting at sidebar. The trial judge

told the prosecutor that he was “going to instruct the jury to disregard that” and that he

will “reserve judgment on this later.” App. 310. The prosecutor then attempted to

explain to the jury what she meant:

       Ladies and gentlemen, my comments about the defense presenting evidence, if I
       could, I just want to finish that the argument that that didn’t happen, [defense
       counsel’s] argument that we all know that that’s not happened, my comments were
       meant that that was argument and that you all did not hear evidence suggesting
       that that’s not what happened.

App. 311 (emphasis added).

       The Court then addressed the jury briefly:

       [A]ny suggestion that the defense needs to put on evidence should be completely
       disregarded by you during your deliberations. I want to make that clear. The
       defense has zero, and I repeat zero, obligation to present any evidence on any issue
       before this jury.

Id. Following this instruction, the prosecutor attempted to further clarify what she meant:

“Once again, my comments were meant so that that was argument and not evidence. So,

again, there was no evidence to show anything other than what the agents told you about

what happened with the car.” App. 311–312 (emphasis added). The prosecutor then

returned to her rebuttal presentation.

       3
           The defense did not present any evidence.
                                              7
       Before the jury began deliberation, the trial judge reiterated the burden of proof:

       I want to emphasize one more time the defense has zero obligation to present any
       evidence with respect to any element or any accusation in this case or in any case.
       The burden is always, and I repeat, always with the government to prove to your
       satisfaction with proof beyond a reasonable doubt every element of every offense.

App. 321.

       The defense then orally moved for a mistrial, arguing that the government

impermissibly shifted the burden of proof and that the judge’s limiting instruction was

insufficient. The judge took the matter under advisement. The jury returned a verdict

later that day: guilty on all counts. The jury also concluded that Thomas brandished a

firearm during the attempted robbery of the Darby Post Office.

       The defense filed a mistrial motion about a week later. The Court denied it,

finding that although the prosecutor’s comments were improper, the error was harmless.

Thomas’s timely appeal followed.

II.    JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). “We review a district

court’s decision not to grant a mistrial on the grounds that the prosecutor made improper

remarks in closing argument for abuse of discretion, and, if error is found, we apply

harmless error analysis.” United States v. Molina-Guevara, 96 F.3d 698, 703 (3d Cir.

1996) (internal citations omitted). We review the District Court’s determination that an

offense is not a crime of violence, as required for conviction under § 924(c), for plain


                                             8
error because Thomas did not raise any objections below. See United States v. Robinson,

844 F.3d 137, 140 (3d Cir. 2016). And we review the District Court’s determination on a

motion to suppress evidence “for clear error as to the underlying factual findings” and we

“exercise[] plenary review of the District Court’s application of the law to those facts.”

United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002).

III.   ANALYSIS

       On appeal, Thomas provides three reasons why we should vacate his conviction

and sentence and remand to the District Court for a new trial. First, he claims that the

District Court erred when it denied his motion for mistrial based on the prosecutor’s

remarks in her rebuttal argument. Second, he argues that his convictions pursuant to 18

U.S.C. § 924(c) should be overturned because the predicate offense for each conviction,

attempted postal robbery, as defined by 18 U.S.C. § 2114(a), does not qualify as a “crime

of violence.” Finally, Thomas contends that the District Court erred when it denied his

motion to suppress the physical evidence that the postal inspectors seized during the

search of his mother’s home.

       A.   The District Court Did Not Abuse Its Discretion When It Denied the
       Motion for a Mistrial

       Thomas argues that the prosecutor improperly shifted the burden of proof when

rebutting defense counsel’s argument. This burden shift, according to Thomas, unfairly

prejudiced him because “his defense depended on the jury’s proper understanding of the

burden of proof.” Appellant’s Br. at 18. As a result, the District Court should have


                                             9
granted a mistrial, according to Thomas, because the jury may not have deliberated

sufficiently, “especially on Count II” (using a firearm in the commission of the Yeadon

Post Office attempted robbery). Appellant’s Br. at 18. We disagree. The District Court

did not abuse its discretion in denying Thomas’s motion for a mistrial.

       To determine whether the District Court erred by failing to grant a mistrial, we

look to “the scope of the improper comments in the overall trial context, the effect of any

curative instructions given, and the strength of the evidence against the defendant.”

United States v. Mastrangelo, 172 F.3d 288, 297 (3d Cir. 1999).

       As a threshold matter, it is debatable whether these remarks even constituted

impermissible burden shifting. In context, it appears that the prosecutor attempted to

undercut the defense counsel’s argument—that McStravick and Link mischaracterized

the details of Thomas’s arrest—by pointing out that there was no evidence to support this

argument. But even if these remarks constituted impermissible burden shifting, we

conclude that Thomas fails to establish the three Mastrangelo factors.

       First, the remarks pertained to a collateral issue—what McStravick and Link

perceived when they arrested Thomas. This testimony is collateral because whether it

happened does not establish or disprove an element of Thomas’s charged offenses. The

testimony’s absence from the government’s closing argument, and the defense counsel’s

disclaimer that this testimony “doesn’t really make a difference in the overall case itself”

further show that this testimony is collateral. Thus, the first Mastrangelo factor— “the


                                             10
scope of the improper comments in the overall trial context”—cuts in favor of the

government. Id. at 297.

       Next, we conclude that the District Court’s immediate curative instruction was

sufficient. “[W]e presume that the jury will follow a curative instruction unless there is

an ‘overwhelming probability,’ that the jury will be unable to follow it and a strong

likelihood that the effect of the [statement] would be ‘devastating,’ to the defendant.”

United States v. Newby, 11 F.3d 1143, 1147 (3d Cir. 1993) (quoting Greer v. Miller, 483

U.S. 756, 766 n.8 (1987)). No such overwhelming probability exists here, thus, we

conclude that the second Mastrangelo factor—“the effect of any curative instructions

given”—cuts in favor of the government. Mastrangelo, 172 F.3d at 297.

       Finally, we conclude that the third Mastrangelo factor—“the strength of the

evidence against the defendant”—cuts in favor of the government. Id. We agree with the

District Court that “the evidence suggestive of [Thomas’s] guilt in this case was

overwhelming”—extensive witness testimony, physical evidence, and a written

confession. App. 21 n.1. The prosecutor’s remarks in her rebuttal did not prejudice

Thomas.

       After considering the context of the prosecutor’s remarks, the District Court’s

curative instruction, and the overall strength of the evidence against Thomas, we hold

that the District Court acted within its discretion when it rejected Thomas’s mistrial

motion.


                                             11
       B.   Attempted Robbery of a Postal Employee is a Crime of Violence When
       Contemporaneously Tried With § 924(c)

       Thomas argues that the convictions pursuant to 18 U.S.C. § 924(c) are invalid

because the predicate offense for both convictions—attempted postal robbery, as defined

by 18 U.S.C. § 2114(a)—is not a crime of violence. We review this ruling for plain error,

and we find no such error here.

       Thomas was indicted and convicted pursuant to 18 U.S.C. § 924(c), which

provides that “any person who, during and in relation to any crime of violence . . . , uses

or carries a firearm, or who, in furtherance of any such crime, possesses a firearm,”

violates § 924(c). Section 924(c) goes on to define a “crime of violence” as a felony that:

“(A) has as an element the use, attempted use, or threatened use of physical force against

the person or property of another”; or “(B) . . . by its nature, involves a substantial risk

that physical force against the person or property of another may be used in the course of

committing the offense.” 18 U.S.C. § 924(c)(3)(A)-(B).

       Generally, when courts determine whether a crime is a crime of violence, they

compare the elements of the predicate offense to the definition of “crime of violence,” in

what is referred to as the categorical approach. See Taylor v. United States, 495 U.S. 575

(1990). But the categorical approach is not necessary in cases where the “predicate

offense . . . and the § 924(c) offense are contemporaneous and tried to the same jury.”

Robinson, 844 F.3d at 141.




                                              12
       This is so because “[t]he jury’s determination of the facts of the charged offenses

unmistakably shed light on whether the predicate offense was committed with ‘the use,

attempted use, or threatened use of physical force against the person or property of

another.’” Id. Thus, “analyzing a § 924(c) predicate offense in a vacuum is

unwarranted” and “[t]he remedial effect of the ‘categorical’ approach is not necessary.”

Id. at 141, 143.

       Here, the charging document establishes that Thomas’s predicate offenses—

attempted robbery of a postal employee—and the § 924(c) offenses—using and carrying

a firearm—occurred contemporaneously. And the District Court instructed the jury that

the crime of robbery of a postal employee required that the defendant “put the life of a

postal employee . . . in jeopardy by use of a dangerous weapon.” SA 399. There is no

need to opine on whether Thomas’s hypotheticals could provide a basis for conviction

under § 2114(a) because the jury had an adequate factual basis to conclude that

§ 2114(a), committed while using and carrying a firearm, is a crime of violence.

Accordingly, we will affirm Thomas’s § 924(c) convictions.

       C.    Law Enforcement Lawfully Obtained Thomas’s Personal Information
       from Oneail

       Thomas contends that the postal inspectors relied on a defective search warrant to

search his mother’s residence because it was premised on illegally-obtained evidence

seized from a third party. We disagree.




                                            13
       At the outset, it bears mentioning that Thomas agrees that the current precedent

“requires that the individual challenging the search have a reasonable expectation of

privacy in the property searched . . . and that he manifest a subjective expectation of

privacy in the property searched[.]” United States v. Kennedy, 638 F.3d 159, 163 (3d Cir.

2011) (alteration in original) (citation omitted); Appellant’s Br. at 53. The Supreme

Court “consistently has held that a person has no legitimate expectation of privacy in

information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. 735,

743–44 (1979).

       Applying the third party doctrine in this case is straightforward. Thomas provided

a third party—Oneail—with his name, address, and certain financial information when he

purchased the Raj mask. In so doing, Thomas abandoned his privacy interest in this

information because he “assumed the risk that the information would be divulged to

police.” Id. at 745.

       Nonetheless, Thomas argues that the third party doctrine “should be overruled

given the heightened concerns for privacy in the digital age and in light of Justice

Sotomayor’s concurring opinion in United States v. Jones, 565 U.S. 400 (2012).”

Appellant’s Br. at 53. At present, we are bound by the third party doctrine articulated in

Smith and therefore affirm.

IV.    CONCLUSION

       For the reasons set forth above, we will affirm the District Court.


                                             14
