Batson Challenge Denied & Uncorroborated Testimony of Co-Conspirators Sufficient Evidence

United States v. Thompson, No. 12-31203 (Nov. 12, 2013) (Smith, Dennis, Higginson)

Thompson challenged the government’s decision to use five of its seven peremptory strikes against black prospective jurors.  The government justified its decision based on the prospective jurors’ demeanors and, for three of them, also on perceived sources of bias toward the government.  Thompson argued these reasons were pretextual because the prosecutor struck 71% of the black potential jurors.  He also argued that Snyder v. Louisiana, 552 U.S. 472 (2008) requires the district court to state its assessment of demeanor on the record.  The panel disagreed, though, and held that “Snyder does not require a district court to make record findings of a juror’s demeanor where the prosecutor justifies the strike based on demeanor alone.”  Further, the record made it clear that the district court found the prosecutor’s demeanor-based justification credible.  After considering the strikes of all five jurors, the panel affirmed the denial of Thompson’s Batson challenge.

The panel also affirmed Thompson’s conviction, finding the evidence was sufficient to show he was part of the conspiracy and used weapons in furtherance of it.  Thompson complained that the only evidence connecting him to the conspiracy was the testimony of co-conspirators.  The panel found, however, that Thompson failed to show such testimony was factually insubstantial or incredible.  See United States v. Medina, 161 F.3d 867, 872-73 (5th Cir. 1998) (“As long as it is not factually insubstantial or incredible, the uncorroborated testimony of a co-conspirator . . . may be constitutionally sufficient evidence to convict.” (internal quotation and citation omitted)).

Absence During Jury Impanelment Did Not Affect Defendant’s Substantial Rights

United States of America v. Thomas, No. 12-60707 (Aug. 1, 2013) (Owen, Haynes, Lemelle)

            Dr. Cassandra Thomas, a licensed physician in the state of Mississippi, challenged her convictions of healthcare and Medicare fraud. The panel affirmed.

Thomas argued that the district court erred by denying her constitutional right to be present at all critical stages of her trial.  The panel rejected that argument, finding that Thomas failed to establish that her absence from jury impanelment affected the outcome of the district court proceedings.

In regards to Thomas’ argument that the court failed to apply the rule of lenity to dismiss the indictment against her at the pretrial phase, the panel held that other underlying facts in Thomas’ conviction undermine her arguments of ambiguity in the Medicare guidelines and affirmed the district court’s denial of Thomas’ motion to dismiss the indictment.

Thomas also claimed that evidence used in the trial, namely the Mississippi state licensure requirements for physical therapists, and the exclusion of an article concerning Medicare regulations, prevented her from providing an adequate argument of ambiguity in the physical therapy guidelines she followed. The panel drew attention to the fact that the excluded article was never offered into evidence during trial and that the change in Medicare regulations occurred after the fraud occurred. Thus, the panel affirmed the court’s decision to deny the motion in limine, exclude the article, and deem the regulation changes as irrelevant to the case.

Thomas’ final argument involving her denied motion for new trial based on ineffective assistance of trial counsel was dismissed because Thomas failed to prove that her counsel’s previous criminal charges and in-court actions posed any objectively unreasonable or prejudicial threat to her defense.  

Thanks to FPD Intern Matthew Gonzalez for this blog post.