NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________

No. 19-1278

UNITED STATES OF AMERICA

v.

KEITH THOMAS,

Appellant

_____________________________________

On Appeal from the United States District Court for the Western District of Pennsylvania (District Court No.: 2-15-cr-00256) District Court Judge: Honorable Cathy Bissoon _____________________________________

Submitted under Third Circuit LAR 34.1(a) on April 22, 2020

(Opinion filed: June 10, 2020)

Before: HARDIMAN, RENDELL and FISHER, Circuit Judges _________

O P I N I O N* _________

RENDELL, Circuit Judge:

Keith Thomas appeals his conviction of conspiracy to possess with intent to

distribute and distribute cocaine and possession with intent to distribute a substance

containing cocaine. He challenges the District Court’s denial of his motion to suppress,

the exclusion of evidence of his prior drug use, and the admission of prior convictions that

he argues were more than ten years old. Because we find that none of these issues warrant

reversal, we will affirm.

I. Background

In 2015, the FBI’s Safe Streets Task Force was investigating cocaine trafficking in

and around Pittsburgh under the leadership of Special Agent John Orlando. The Task Force

became aware of Appellant Keith Thomas through their investigation into distributor

Semori Wilson, which involved extensive surveillance as well as wiretaps. On October

16, 2015, Task Force officers watched Wilson meet up with his cocaine source, Domin

Guerrero-Guerrero, at an IHOP, and switch cars. Wilson drove Guerrero-Guerrero’s car

to Appellant Thomas’s house less than 15 minutes later and stayed for a few minutes. Later

that evening, Wilson drove Guerrero-Guerrero’s car to the hotel where Guerrero-Guerrero

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 was staying and where Guerrero-Guerrero had recently returned in Wilson’s vehicle.

Wilson parked, removed a bag from the back seat, and entered the hotel.

On October 23, 2015, Wilson called Thomas and said that he needed to talk with

him as soon as possible. When Thomas asked what it was about, Wilson said “Bro do we

do that?” Supp. App. 337. Later, Wilson told Thomas in a text message that he wanted to

see him about “that Mercedes,” a term Agent Orlando and Thomas both testified referred

to high-quality cocaine. App. 406, 540-41; Supp. App. 338. Thomas agreed to meet at

Wilson’s home in the early hours of October 24. Surveillance camera footage outside

Wilson’s home showed Thomas arrive, exit his vehicle, interact with Wilson briefly, and

then drive away.

On October 27, 2015, Thomas called Wilson and said he did not like one of the “two

logos” Wilson had sold him. Supp. App. 341. Thomas explained that “some of it isn’t

blockin all the way back up.” App. 254-55; Supp. App. 342. Agent Orlando understood

this to mean that Thomas was dissatisfied with cocaine Wilson sold him because it was not

finishing “in a block fashion” when he tried to cook it into crack. App. 408. Thomas later

confirmed the accuracy of this interpretation. Wilson said he would call the person who

sold him the cocaine to find a way to rectify the situation. On October 29, Thomas called

Wilson to remind him. When Wilson said he was forty minutes away, Thomas told him to

be sure to get in touch “cause this dude keep on callin me.” Supp. App. 347. The two

eventually met at Wilson’s house two days later, as confirmed by surveillance, but Wilson

had “[n]o [a]nswer yet” regarding the problematic cocaine. App. 160-61; Supp. App. 363.

3 On November 1, Thomas again texted Wilson, asking him to “[c]all me asap.”

Supp. App. 366. Conversations between Wilson and another distributor revealed to

investigators that the men were receiving many similar complaints about the cocaine,

making it difficult to sell. Later on November 1, Wilson texted Thomas to ask whether he

was still having problems. Thomas replied that he was “doing it now” and would know in

two minutes. Supp. App. 368. Wilson said not to “go big just in case.” Id. Agent Orlando

understood this exchange to mean Thomas was attempting to cook the cocaine Wilson sold

him into crack, and Wilson was warning Thomas not to cook all of it so that he could refund

or exchange the rest if it was problematic. Thomas corroborated this interpretation.

On November 2, Wilson spoke with Guerrero-Guerrero about the cocaine. Wilson

said that Guerrero-Guerrero had sold him the “Mercedes” cocaine and “the can”—a term

for low-quality cocaine—with which customers were having problems. App. 411. The

next day, Wilson called Thomas to set up a meeting. When Thomas asked why, Wilson

asked if he had amnesia and said he wanted to “grab that” from Thomas. Supp. App. 369.

The two arranged an in-person meeting. From this exchange, Agent Orlando inferred that

Wilson was going to receive a new shipment of cocaine from which he could resupply

Thomas and that he wanted to gather and return the inferior cocaine.

This prompted Agent Orlando to obtain several search warrants, including a warrant

to search Thomas’s residence. Task Force officers searched Thomas’s residence on

November 3, 2015. They recovered multiple grams of both powder and crack cocaine, a

cutting agent, and mixing paraphernalia covered in cocaine residue and Thomas’s

fingerprints.

4 In December 2015, Thomas was indicted for conspiracy to possess with intent to

distribute and distribute cocaine under

as well as one count of possession

with intent to distribute a substance containing a detectable amount of cocaine in violation

of

(b)(1)(C). Thomas filed a motion to suppress the evidence found in his

house, arguing that Agent Orlando’s affidavit did not set forth probable cause. The District

Court held a hearing on July 20, 2018 and denied the motion.

The District Court also addressed several evidentiary issues. Thomas’s counsel

moved to introduce evidence of Thomas’s prior drug use to show that he was addicted to

cocaine and possessed cocaine only for personal use, but the government objected. The

District Court denied that motion on August 10. At the same August pretrial hearing, the

government argued that, should he testify, Thomas’s entire prior criminal record would be

admissible. Thomas argued in opposition that certain convictions were more than ten years

old, and their probative value did not substantially outweigh the risk of prejudice under

Federal Rule of Evidence 609. The District Court found that all the offenses fell within

the ten-year period but reserved its ruling until Thomas decided whether to testify. Thomas

filed a motion for reconsideration, and the Court held that, regardless of how the ten-year

period was calculated, the entire criminal record would be admitted.

Thomas was tried along with one co-defendant, Damien Gibson, in August 2018.

The evidence produced at trial showed the foregoing facts, relying heavily on surveillance

footage, recorded calls, and text messages. Agent Orlando and Pennsylvania State Police

Trooper Michael Warfield testified to interpret some of the language in the text messages

5 and calls. Thomas also testified on his own behalf and was impeached with his prior

convictions. On August 27, 2018, the jury convicted Thomas on both counts.

II. Discussion

On appeal, Thomas raises three issues. Thomas challenges the District Court’s

denial of his motion to suppress evidence obtained pursuant to a search warrant he claims

was deficient. Next, he argues the District Court erred in prohibiting him from introducing

evidence of prior drug use to support his defense that the drugs in his home were for

personal use. Finally, Thomas contends the Court erred in allowing the government to

impeach him with prior criminal convictions that he argues fell outside the ten years

considered under Federal Rule of Evidence 609. We address each argument in turn.

A. Denial of Motion to Suppress

Thomas contends that the District Court erred in denying his motion to suppress

because the affidavit in support of the search warrant did not demonstrate probable

cause. We apply plenary review to the District Court’s assessment of the magistrate

judge’s probable cause determination. United States v. Stearn,

(3d Cir.

2010). We therefore must review whether the magistrate who issued the search warrant

“had a substantial basis for concluding that probable cause existed.”

(quoting Illinois

v. Gates,

(1983)). In assessing probable cause, a magistrate must

determine whether, based on the facts set forth in the affidavit, “there is a fair probability

that contraband or evidence of a crime will be found in a particular place.”

(quoting

Gates,

); id. at 559.

6 The affidavit here offered more than a substantial basis for the magistrate judge to

find a fair probability that contraband would be found in Thomas’s house. The affidavit

specified that the address was Thomas’s residence and that Thomas was a suspected

cocaine dealer who received his supply of cocaine from Wilson. It specifically noted that

Wilson had gone to Thomas’s address after exchanging vehicles with his cocaine source,

Guerrero-Guerrero, and that, immediately after leaving Thomas’s house, Wilson took a

large bag to Guerrero-Guerrero. The affidavit detailed the repeated conversations between

Thomas and Wilson using coded language associated with the cocaine trade and

correspondence showing plans to meet up on November 3 for Wilson to provide another

supply. These facts established a fair probability that Thomas was purchasing cocaine from

Wilson, that Wilson had delivered cocaine to Thomas’s house, and that evidence of drug

trafficking would be at the house. The magistrate judge thus properly determined that the

affidavit was supported by probable cause, and the District Court rightly denied the motion

to suppress.

B. Exclusion of Evidence of Prior Drug Use

Thomas also argues that the District Court abused its discretion by excluding

evidence of prior drug use that he hoped would show he possessed cocaine only for

personal use. We review the evidentiary rulings of the District Court for abuse of

discretion. United States v. Green,

(3d Cir. 2010). To the extent the

ruling is based on a legal interpretation of the Federal Rules of Evidence, we exercise

plenary review over questions of law.

A district court has “wide discretion in

determining the admissibility of evidence under the Federal Rules,” including “weighing

7 any factors counseling against admissibility.” United States v. Freeman,

,

342 n.8 (3d Cir. 2014) (citation omitted). We “will not disturb a trial court’s exercise of

discretion unless no reasonable person would adopt the district court’s view.” United

States v. Starnes,

(3d Cir. 2009) (citation omitted).

The District Court here was perfectly reasonable in determining that the evidence

Thomas proposed should not be admitted. To show that he possessed cocaine only to feed

his personal addiction, Thomas sought to introduce a letter from a rehabilitation center

showing that he was admitted for treatment for cocaine dependency in 2010 but absconded

after a short period. He also sought to admit documents from the Probation Office that

demonstrated he tested positive for substances other than cocaine while awaiting trial in

2015 and that he self-reported using cocaine. This evidence did little to demonstrate that

Thomas was addicted to or using cocaine at the time of the offense. The District Court

emphasized the lack of evidence that Thomas was a current cocaine user and found the

positive tests for different controlled substances to be “irrelevant and inadmissible.” App.

41. The Court similarly ruled that the letter from the rehabilitation facility was “too

remote” and lacked relevance to activity five years later.

The letter and the information

about pre-trial drug use were further unnecessary because the government did not dispute

the fact that Thomas was addicted to or used cocaine. The District Court therefore did not

abuse its discretion in excluding the evidence. 1

1 Even if the Court had erred in excluding the evidence, any error was harmless. Thomas testified to the same facts about his cocaine addiction and continued use. Given that he had the chance to present the excluded evidence through testimony, and the government did not dispute his account, any error in excluding the evidence was harmless. See 8 C. Admission of Prior Criminal Convictions

Finally, Thomas argues that the District Court abused its discretion by allowing the

government to impeach his credibility with convictions that occurred more than ten years

prior to the trial without finding that their probative value substantially outweighed the risk

of prejudice as required under Federal Rule of Evidence 609(b). As noted above, we

review the evidentiary rulings of the District Court for abuse of discretion but exercise

plenary review over questions of law to the extent the ruling is based on a legal

interpretation of the Federal Rules of Evidence. Green,

. Here, any error

in the District Court’s legal interpretation of the rules was harmless, so we will affirm.

Federal Rule of Evidence 609 permits the admission of evidence of prior criminal

convictions for the purpose of attacking a witness’s credibility. Fed. R. Evid. 609. In

general, a crime punishable by more than a year of imprisonment must be admitted to attack

a defendant-witness’s credibility if its probative value outweighs its prejudicial effect. Fed.

R. Evid. 609(a)(1)(B). Rule 609(b), however, imposes a limit for convictions older than

ten years. Specifically, “subdivision (b) applies if more than 10 years have passed since

the witness’s conviction or release from confinement for it, whichever is later. Evidence of

the conviction is admissible only if . . . its probative value, supported by specific facts and

circumstances, substantially outweighs its prejudicial effect.” Fed. R. Evid. 609(b)(1)

(emphasis added).

United States v. Greenspan,

(3d Cir. 2019); see also United States v. Hughes,

(7th Cir. 1992). 9 The government sought to introduce several of Thomas’s prior convictions under

Rule 609(a)(1)(B), including September 2005 convictions for receiving stolen property,

giving false reports to law enforcement, and giving false identification to law enforcement,

and a 2007 conviction for unauthorized use of a motor vehicle. Thomas argued in

opposition that the 2005 and 2007 convictions were inadmissible under Rule 609(b)

because more than ten years had passed, and the probative value of the convictions did not

substantially outweigh their prejudicial effect. The government responded that, although

more than ten years had passed at the time of the 2018 trial, because the 2005 and 2007

convictions occurred within ten years of when the conspiracy offense began in June 2015,

they were not barred by Rule 609(b) and should be admitted.

The District Court agreed with the government, holding that the convictions fell

within the ten-year period. When Thomas moved for reconsideration, the District Court

denied his motion, stating:

For the reasons outlined by the government in its response, all of which are incorporated herein by reference, the Court finds that the convictions at issue fall within the relevant 10 year period under Rule 609. Moreover, even if Defendant Thomas’s analysis was correct, given the type of crimes at issue (crimes involving dishonesty and motives to avoid prosecution), when the convictions did occur if analyzed under Defendant Thomas’s rubric (not significantly beyond the 10 years set forth in Rule 609) and the importance of the credibility of the Defendant (great importance), the Court finds that the probative value of using these convictions for the purposes of impeachment outweighs any prejudicial effect.

App. 871-72.

The government now urges us to measure Rule 609(b)’s ten-year period from the

date of the alleged offense or the date of the indictment. Such an early date has not typically

10 provided the end point for Rule 609(b)’s ten-year period in this Court or other circuits. 2

We have previously assumed that the relevant inquiry under Rule 609(b) is whether the

date of conviction or release occurred “more than ten years prior to trial.” United States v.

Williams,

(3d Cir. 1989), superseded by statute on other grounds

as indicated in Stinson v. United States,

, 39 n.1 (1993). Numerous other

circuits have viewed the ten-year period the same way. See United States v. Stoltz,

(8th Cir. 2012) (counting the ten-year period from the date of trial); United

States v. Peatross,

(6th Cir. 2010) (date of testimony); United States

v. Nguyen,

(1st Cir. 2008) (date of trial); United States v.

Thompson,

(7th Cir. 1986) (date of trial). But see United States v.

Lorenzo,

(9th Cir. 1995) (date of indictment); United States v. Foley,

(8th Cir. 1982) (date of offense).

We need not resolve the dispute about the correct date from which to measure Rule

609(b)’s ten-year period, however, because any error was harmless. We must assess

“whether the error itself had substantial influence” on the jury. Gov’t of V.I. v. Bedford,

(3d Cir. 1982) (quoting Gov’t of V.I. v. Toto,

(3d

Cir. 1976)). “Unless there is a reasonable possibility that [the error] contributed to the

2 We also note that measuring from the date of the offense or the indictment presents certain logical challenges. Rule 609(b)’s focus is impeachment of a witness’s credibility when testifying, not at the time of the offense or indictment. Further, the Rule applies to any trial witness, not exclusively criminal defendants, and is therefore relevant in cases where there is no offense or indictment date. As explained below, however, we need not confront these issues today. 11 conviction, reversal is not required.” United States v. Zarintash,

(3d Cir.

1984) (alteration in original) (internal quotation marks and citation omitted).

Here, there is no reasonable possibility that the error contributed to the jury’s

decision to convict because the evidence of Thomas’s guilt was overwhelming. At trial,

the government introduced numerous recorded phone calls and text messages, surveillance

footage, and the testimony of officers regarding their investigation of the conspiracy.

Thomas himself chose to testify—apparently undeterred by the Court’s decision to admit

evidence of his convictions—and corroborated the officers’ interpretations of his text

messages and calls as drug-related. He admitted to possessing powder and crack cocaine

that he purchased from Wilson as well as the other items recovered from his house.

Thomas admitted to cooking the crack and periodically distributing drugs to friends. This

testimony, in combination with the recorded calls, text messages, and surveillance footage,

provided overwhelming evidence on which the jury could convict Thomas. Any error in

the admission of the 2005 convictions for receiving stolen property, giving false reports to

law enforcement, and giving false identification to law enforcement and the 2007

conviction for unauthorized use of a motor vehicle was harmless error.

III. Conclusion

Because none of the issues Thomas has raised warrant reversal, we will affirm.

12