USA v. Jonathan Jermaine Thomas

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12930
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JONATHAN JERMAINE THOMAS,
a.k.a. Webbie,
a.k.a. JT,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
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2 Opinion of the Court 22-12930
D.C. Docket No. 5:21-cr-00033-JA-PRL-1
____________________
Before JILL PRYOR , N EWSOM, and BRANCH, Circuit Judges.
PER CURIAM:
Jonathan Jermaine Thomas appeals his convictions for con-
spiracy to possess with the intent to distribute controlled sub-
stances, possession of a firearm in furtherance of a drug-trafficking
conspiracy, and possession with intent to distribute 400 grams or
more of a substance containing fentanyl. On appeal, he raises three
arguments. First, he asserts that the district court erred by instruct-
ing the jury on the alternative charge of aiding and abetting the
possession of a firearm in furtherance of a drug-trafficking conspir-
acy. Second, he contends that the district court plainly erred by
determining that the government’s closing remarks did not violate
his right to a fair trial. Third, he argues that the evidence was in-
sufficient to support his conviction for possession of a firearm in
furtherance of a drug-trafficking conspiracy. After careful review,
we affirm.
The facts are known to the parties, and we repeat them here
only as necessary to decide the case.
I.
Thomas first challenges the jury instructions on his charge
of aiding and abetting the possession of a firearm in furtherance of
a drug-trafficking conspiracy. In particular, he argues that the dis-
trict court should never have instructed on that charge because
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22-12930 Opinion of the Court 3
prosecutors (1) failed to list the aiding and abetting charge in his
superseding indictment and (2) did not mention the charge at trial.
We review the legal correctness of a jury instruction de
novo and review questions of phrasing for abuse of discretion.
United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). We
will reverse the conviction on such grounds only if the district
court presented the issues of law inaccurately or improperly guided
the jury in a significant matter that violated the defendant’s due
process rights. Id.
Aiding and abetting is a means of holding a defendant guilty
as a principal on the ground that he assisted someone else in the
commission of an offense. United States v. Martin, 747 F.2d 1404,
1407 (11th Cir. 1984). To be clear, though, it is not a separate
crime—only a separate ground of liability. Id. The main aiding and
abetting statute under federal law is 18 U.S.C. § 2. That statute
provides that an individual may be punished as a principal if he
“commits an offense against the United States or aids, abets, coun-
sels, commands, induces or procures its commission,” or “willfully
causes an act to be done which if directly performed by him or an-
other would be an offense against the United States.” Id. § 2 (a)–
(b). Under our case law, the government does not need to specifi-
cally allege aiding and abetting in the indictment for the district
court to instruct the jury on the charge. Martin, 747 F.2d at 1407.
Applying these straightforward legal principles, we conclude
that Thomas’s challenge to the aiding and abetting jury instruction
fails. Even though the government did not specifically charge
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4 Opinion of the Court 22-12930
Thomas with aiding and abetting, our case law is clear: An aiding
and abetting instruction is allowed even when the government
does not indict on that particular count. Id.1
II.
Thomas next argues that prosecutors called him an “idiot”
during their closing argument and thus violated his right to a fair
trial. Typically, we review de novo a claim of prosecutorial mis-
conduct during closing arguments. United States v. House, 684 F.3d
1173, 1197 (11th Cir. 2012). When a defendant fails to object at
trial, though, we review the statements for plain error. United
States v. Mueller, 74 F.3d 1152, 1157 (11th Cir. 1996). To show plain
error, the defendant must show that (1) there was an error, (2) that
is plain, (3) the error affected the defendant’s substantial rights, and
(4) it “seriously affected the fairness, integrity, or public reputation
of judicial proceedings.” United States v. Madden, 733 F.3d 1314,
1320 (11th Cir. 2013) (quotation marks omitted). During their clos-
ing argument, it is improper for prosecutors to exceed the evidence
presented at trial. United States v. Reeves, 742 F.3d 487, 505 (11th
Cir. 2014). That said, they may state conclusions drawn from the
trial evidence and fairly respond to defense counsel’s arguments.
Id. Closing arguments prejudice a defendant’s substantial right
when “a reasonable probability arises that, but for the [improper]
1 It is worth noting that the superseding indictment did, in fact, list 18 U.S.C.
§ 2 among the statutes violated. This fact further demonstrates that Thomas
had adequate notice of the charges against him and that the jury instructions
were not improper.
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22-12930 Opinion of the Court 5
remarks, the outcome of the trial would have been different.”
United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006).
As a threshold matter, we review the alleged statements at
issue in this case for plain error because Thomas did not object to
them at trial. See Mueller, 74 F.3d at 1157. Thomas focuses on the
fact that the government called him an “idiot” during its closing
remarks. But the context of the “idiot” remark in question under-
cuts the force of his argument. During his closing argument,
Thomas’s lawyer argued that Thomas was innocent because the
government did not find material on his phone showing him hold-
ing guns and drugs. In response, the government explained it could
not uncover such evidence because Thomas was “not a complete
idiot.” Put another way, the government was merely pointing out
that a clever individual might take some steps to conceal criminal
activity. The district court reasonably determined this statement
was fairly responding to the defense counsel’s arguments. Reeves,
742 F.3d at 505. And, even if the remark was somehow “im-
proper,” we find no reason to conclude that “but for” the govern-
ment’s “idiot” comment, “the outcome of the trial would have
been different.” Eckhardt, 466 F.3d at 947.
III.
Finally, Thomas argues the evidence at trial was insufficient
to support his conviction for possessing a firearm in furtherance of
a drug distribution conspiracy. When a defendant challenges the
sufficiency of the evidence supporting a conviction and is denied a
Rule 29 motion for judgment of acquittal, we review the district
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6 Opinion of the Court 22-12930
court’s determination de novo. United States v. Gamory, 635 F.3d
480, 497 (11th Cir. 2011). While doing so, we view the evidence in
the light most favorable to the government and make all reasona-
ble inferences and credibility choices in favor of the jury’s verdict.
Id.
Like many criminal cases before it, a key source of evidence
in this case is witness testimony. We will not upset a jury’s decision
to credit a witness’s testimony unless the testimony is “incredible
as a matter of law”. United States v. Isaacson, 752 F.3d 1291, 1304
(11th Cir. 2014). For testimony to be incredible as a matter of law,
it must concern “facts that the witness physically could not have
possibly observed” or events impossible “under the laws of na-
ture.” Id. (quotation marks omitted).
Because Thomas moved for judgment of acquittal at trial,
we review his sufficiency of the evidence challenge de novo. See
Gamory, 635 F.3d at 497. Under that standard, we conclude the
government presented sufficient evidence for the jury to convict
Thomas for possessing a firearm in furtherance of a drug distribu-
tion conspiracy. For instance, one witness testified that Thomas
routinely carried a pistol while delivering drugs. Another said he
saw Thomas deliver and sell drugs and that Thomas routinely car-
ried a firearm in his pocket. Notably, the jury found both wit-
nesses’ testimonies credible. Given the substance of the testimony,
we determine that the defendant’s actions described by the wit-
nesses were physically observable to them, and none of the
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22-12930 Opinion of the Court 7
conduct detailed by the testimony is impossible under the laws of
nature. Isaacson, 752 F.3d at 1304.
* * *
To sum up, Thomas has failed to show (1) that the district
court’s jury instructions on the aiding-and-abetting charge violated
his due process rights, (2) that the government’s “idiot” remark
prejudiced his right to a fair trial, or (3) that the witness testimony
presented in this case is insufficient to support his conviction.
AFFIRMED.
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