USA v. Thompson

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
BOBBY DEWAYNE THOMPSON,
Defendant.
Case No. 4:16-cr-00009-RRB
ORDER RE: PETITION TO VACATE
SENTENCE UNDER 28 U.S.C. § 2255
Defendant, represented by counsel, collaterally attacks his conviction for
being a felon in possession of a firearm, alleging ineffective assistance of both trial and
appellate counsel.1 The government opposes the Petition, and Defendant has replied.
I. 	BACKGROUND
According to the Indictment,2 “on or about” March 22, 2016, Defendant
knowingly possessed a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),”
previously having been convicted of a crime punishable by imprisonment for a term
exceeding one year. 	The undisputed facts are as follows. 	Defendant was arrested on
March 22, 2016, during a traffic stop. 	Defendant was in the front passenger seat and, in
1 Docket 116.
2 Docket 2.
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addition to the driver, there were two individuals in the back seat. 	A search of the car
incident to Defendant’s arrest for giving false information uncovered a Smith & Wesson
model 60 revolver under the front passenger seat. 	Law enforcement seized Defendant’s
cell phone, which contained photographs, dated two days prior, of Defendant with what
appeared to be a Smith & Wesson model 60 revolver tucked into his waistband.
This Court denied Defendant’s motion to suppress his statements from the
initial contact with Trooper Howard, evidence seized as a result of his detention and arrest,
and evidence obtained resulting from seizure and search of his cell phone, including the
photographs.3 The photographs, showing Defendant with a gun, were admitted as evidence
to the jury.
During jury deliberations, the jurors sent a question: 	“In the pictures from
the 20th of March at the hotel, Thompson was clearly in possession of the gun when he
had it in his sweatpants. Why do we need to consider anything about the 22nd of March
in the car? Can we convict on evidence from the 20th alone?”4 This Court then instructed
the jury that the indictment charged that Defendant had committed the charged act “on or
about March 22, 2016,” that the law does not provide a specific definition of the term “on
or about,” and instructed the jurors that they must decide the question “based upon your
understanding of the language used after considering all of the evidence presented and the
instructions provided.”5
3 Docket 62.
4 Docket 68-1 at 4.
5 Id. at 5.
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II. 	DISCUSSION
Defendant seeks relief from this Court based on multiple theories. He argues
that the Court’s answer to a jury question caused a constructive amendment or fatal
variance, and that both his trial and appellate counsel were ineffective.
A. 	Constructive Amendment and Fatal Variance
The Fifth Amendment guarantees a criminal defendant the “right to stand
trial only on charges made by a grand jury in its indictment.”6 Defendant argues that the
Court’s jury instructions constituted a constructive amendment to the indictment, which is
prohibited by the Fifth Amendment.7 	The Ninth Circuit recognizes that a constructive
amendment of the indictment occurs when “the crime charged was substantially altered at
trial, [and] it was impossible to know whether the grand jury would have indicted for the
crime actually proved.”8 Defendant discusses a Sixth Circuit case reversing a possession
conviction due to constructive amendment of the indictment by a jury instruction in similar
circumstances.9 The Sixth Circuit found that it was “possible that the jury convicted [the
defendant] based on an incident of possession not intended by the grand jury to be part of
the charge,” that some jurors may have convicted the defendant for possession on different
dates, and that this left uncertainty as to whether the verdict was unanimous as required by
Federal Rule of Criminal Procedure 31(a).10
6 United States v. Adamson, 291 F.3d 606, 614 (9th Cir. 2002) (citation omitted).
7 Docket 116 at 11–16.
8 United States v. Davis, 854 F.3d 601, 603 (9th Cir. 2017).
9 See United States v. Ford, 872 F.2d 1231, 1236–37 (6th Cir. 1989).
10 Id.
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Defendant argues that this case is similar to Ford, because the trial record
establishes that he was convicted for conduct that occurred on a date different from the
indictment.11 He argues that the jury’s question in this case indicates that they had reached
a consensus that he possessed the gun on the 20th, but had not reached a consensus
regarding the 22nd.12 Moreover, Defendant argues that “Defense counsel conceded [in his
closing argument] that Thompson possessed the gun on March 20th, but asserted that he
did not possess the gun during the traffic stop on March 22nd.”13 Defendant now argues
that his lawyer’s concession that he possessed the gun on the 20th, combined with the jury’s
question and the Court’s instruction, and the return of a guilty verdict less than an hour
later, establish that he was convicted of unindicted conduct; i.e., possession of the gun, as
evidenced by the photographs, on March 20th.
Alternatively, Defendant argues that even if the trial evidence and instruction
were not a constructive amendment, the evidence and instructions created a variance that
affected his substantial rights.14 A variance “occurs when . . . the evidence offered at trial
proves facts materially different from those alleged in the indictment.”15 “A constructive
amendment usually involves a complex of facts,” while a variance occurs “where the
indictment and the proof involve only a single, though materially different, set of facts.”16
11 Docket 116 at 15.
12 Id., citing Docket 68-1 at 4.
13 Id., citing Trial Transcript, Docket 94 at 137, 161.
14 Docket 116 at 16–19.
15 Adamson, 291 F.3d at 614.
16 Id. at 615.
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While a constructive amendment requires reversal, “a variance requires reversal only if it
prejudices a defendant’s substantial rights.”17
With respect to a constructive amendment or fatal variance, the government
argues that res judicata precludes Defendant from asserting these theories because the
Ninth Circuit already has ruled on the issues on direct appeal.18 “Under the law of the case
doctrine, a court is generally precluded from reconsidering an issue that has already been
decided by the same court, or a higher court in the identical case.”19 “[W]hen a matter has
been decided adversely on appeal from a conviction, it cannot be litigated again on a 2255
motion.”20 	For res judicata to apply, “the issue in question must have been decided
explicitly or by necessary implication in the previous disposition.”21 	The government
argues that in this case, the Ninth Circuit explicitly decided that no variance had occurred,
and implicitly found that there was no constructive amendment.22
The Court of Appeals held as follows:
[Defendant] now contends that he was effectively convicted
for possession of the gun on March 20, not March 22, because
the cell phone photos of him with the gun were taken on
March 20. 	However, at trial, the prosecution focused on
March 22. The Government offered the March 20 photographs
as supporting evidence that Thompson possessed the pistol on
March 	22, 	and 	there 	was 	overwhelming 	evidence 	that
Thompson did possess the pistol on March 22 because an
officer 	testified 	that 	the 	pistol 	was 	discovered 	under
Thompson’s car seat on March 22. 	In addition, the district
17 Id.
18 Docket 123 at 12.
19 United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (citation and internal quotation
omitted).
20 United States v. Jingles, 702 F.3d 494, 498 (9th Cir. 2012) (citation omitted).
21 Id. at 499 (citation and internal quotation omitted).
22 Docket 123 at 13.
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judge instructed the jury to reach its verdict based only on the
evidence 	presented. 	Consequently, 	Thompson 	has 	not
demonstrated that he was convicted of possession of the pistol
on March 20 rather than on March 22.23
Despite the foregoing, Defendant argues that he did not have a full and fair
opportunity to litigate the issue of the Court’s instruction to the jury at the Ninth Circuit,
because the Court of Appeals reviewed only for plain error.24 The Court of Appeals stated
“[w]e review de novo a claim that there was a fatal variance between the proof at trial and
the facts alleged in the indictment . . . However, when a defendant does not object in the
trial court that a jury instruction is a variance, we review a variance claim only for plain
error.”25 	Accordingly, Defendant now asserts that “had trial counsel objected to the
instructions, the court [of appeals] would have been required to review the issue de novo
and reverse the conviction without regard to prejudice if a constructive amendment had
occurred.”26 Moreover, as addressed below, Defendant complains that his appeals counsel
did not inform the Court of Appeals that his trial lawyer had conceded the March 20th
possession in the photographs. He argues that this Court accordingly has the authority to
address the constructive amendment issue, because the it was not decided by the appellate
court.27
Section 2255 is not a vehicle to challenge an appellate court’s decision. The
Ninth Circuit, in Feldman v. Henman, explained that a habeas corpus petition cannot be
23 Docket 95 at 5–6.
24 Docket 116 at 23–26.
25 Docket 95 at 5 (citations omitted).
26 Docket 116 at 25 (citing Untied States v. Davis, 854 F.3d 601, 603–05 (9th Cir. 2017)).
27 Id. at 26.
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used to review the action of the Court of Appeals.28 Although a court may have discretion
to reopen a previously resolved question under certain circumstances, this Court is aware
of no authority that allows it to reconsider an issue already decided by the Court of Appeals
based upon the assertion that the Court of Appeals applied the wrong standard of review.29
Ninth Circuit precedent is clear that “[i]f an appeal is improvidently [resolved] in this court
the remedy is by way of motion directed to this court asking for a recall of the mandate . . .
so that this court may determine whether the appeal should be reinstated.”30 Defendant’s
petition is, therefore, DENIED on these theories.
B. 	Ineffective Assistance of Trial Counsel
Under 	the 	two-prong 	Strickland31 	test, 	Defendant 	must 	establish 	that
(1) “counsel’s performance was deficient, i.e., that it fell below an ‘objective standard of
reasonableness’ under ‘prevailing professional norms’”; and (2) he “was prejudiced by
counsel’s deficient performance, i.e., that ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different’.”32
Defendant argues that his trial counsel was ineffective for conceding during
his closing statement that Defendant possessed the gun in the March 20th photos.33 	The
28 815 F.2d 1318, 1321–22 (9th Cir. 1987) (citing cases).
29 	Such circumstances include: 	(1) the first decision was clearly erroneous; (2) an intervening
change in the law has occurred; (3) the evidence on remand is substantially different; (4) other changed
circumstances exist; or (5) a manifest injustice would otherwise result. United States v. Alexander, 106
F.3d 874, 876 (9th Cir. 1997).
30 Feldman, 815 F.2d at 1323 (emphasis original). See also Zipfel v. Halliburton Co., 861 F.2d
565, 567 (9th Cir. 1988) (“The authority of a Court of Appeals to recall its mandate is clear . . . [and] exists
as part of the court’s power to protect the integrity of its own processes.”).
31 Strickland v. Washington, 466 U.S. 668 (1984).
32 Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998) (quoting Strickland, 466 U.S. at 691).
33 Docket 116 at 28.
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Government denies that trial counsel conceded Defendant’s March 20th possession of a
firearm, but that even if he did, “it is not ineffective assistance to acknowledge what the
evidence clearly shows.”34 The Court has reviewed the transcript of closing argument, and
finds that defense counsel clearly conceded that Defendant possessed a gun in the
photographs. He stated: “And so without knowing what’s going on within those pictures,
there’s no evidence to prove that the gun was Bobby Thompson’s. It shows that he was in
the bathroom with it on March 20th. 	Does it prove that he knew it was in the car on
March 22nd? No.”35 Defense counsel now states in his affidavit that, “I believed that the
jury could only convict Mr. Thompson for conduct that occurred on March 22, 2016.”36
As the Ninth Circuit indicated, the prosecution’s case focused on the weapon found under
Thompson’s seat on March 22nd.37 The March 20th photographs were ostensibly admitted
only to show Thompson’s ownership of the weapon, countering the defense theory was
that the weapon in the vehicle belonged to the driver, David Treadway. 	But the issue of
whether defense counsel’s concession amounted to ineffective assistance of counsel is a
different matter. 	Defense counsel’s closing argument was based on the prosecution’s
theory of the case that Defendant possessed the gun on March 22nd during the traffic stop.
A subsequent question by the jury, wherein the jury itself muddles the issue of the dates,
does not render counsel’s statement during closing argument “deficient” under Strickland.
34 Docket 123 at 17.
35 Docket 94 at 161.
36 Docket 116-2, ¶ 5.
37 Docket 95 at 6.
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Defendant alternatively argues that trial counsel’s failure to object to the
Court’s instruction fell below an objective standard of reasonableness.38 Trial counsel has
provided an affidavit, wherein he explains that his theory of the defense relied upon his
“belief that the indictment was limited to conduct that occurred on March 22, 2016 during
a traffic stop,” and that the photographs taken two days earlier showing his client with a
gun were admitted “only as evidence that the gun found under the seat of the vehicle . . .
was Mr. Thompson’s and not one of the other occupants of the vehicle.”39 Counsel states
that he conceded that his client possessed a gun when the photographs were taken and did
not offer any defense to his possession of the gun in the photos, because he “believed that
the jury could only convict Mr. Thompson for conduct that occurred on March 22, 2016.”40
Counsel states that he “neglected to further address my concerns after the court proposed
its instructions,” and that he “had no strategic reason for not objecting to the court’s
instructions in response to the jury’s question.”41
But the transcript reflects that when it became clear from the jury’s question
that they wanted the option to “convict on evidence from the 20th alone,” defense counsel
argued against the Court instructing that they did not need to consider the evidence from
the 22nd, describing such instruction as “absolutely wrong.”42 	Defense counsel further
articulated to the Court that:
The government, by the terms of the indictment, focused on
March 22nd. The case was defended that way. At trial, in front
38 Docket 116 at 19–23.
39 Docket 116-2.
40 Id.
41 Id.
42 Docket 94 at 202.
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of the jury, [the prosecutor] argued ladies and gentlemen, the
pictures 	on 	the 	20th 	are 	circumstantial 	evidence 	that 	he
possessed the gun on the 22nd . . . And so the case was
prosecuted and defended on the traffic stop on the possession
. . . that means the government asked the jury to convict on the
22nd and now wants a jury instruction that says, you can ignore
the evidence about the 22nd, just convict him on the 20th if we
have done that good a job. 	And that would create, in legal
terms, a fatal variance of the indictment, or a variance in what
we were given notice of and defended against.43
Wary of creating a fatal variance, this Court, with the assistance of both counsel, crafted a
response to the juror’s question that reiterated that the indictment charged that Defendant
had committed the charged act “on or about March 22, 2016,” that the law does not provide
a specific definition of the term “on or about,” and that it instructed the jurors that they
must decide the question “based upon your understanding of the language used after
considering all of the evidence presented and the instructions provided.”44 	The response
to the jury’s question did not, however, directly respond to the queries: “Why do we need
to consider anything about the 22nd of March in the car?” or “Can we convict on evidence
from the 20th alone?”45
Defendant argues that a reasonable attorney would have brought to the trial
Court’s attention that counsel already had conceded possession in the March 20th photos.
But the Court was present for that closing argument, as well. Although the answer to the
jury question may have been imperfect, this Court cannot find that defense counsel’s
performance 	“fell 	below 	an 	objective 	standard 	of 	reasonableness 	under 	prevailing
43 Id. at 204.
44 Docket 68-1 at 5.
45 Id. at 4.
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professional norms’” for failing to continue to argue beyond what is transcribed above.
Nor is this Court convinced that there is “a reasonable probability” that, had the Court
given the jury a more comprehensive answer to the question, the result of the proceeding
would have been different.”46 Defendant’s petition based on ineffective assistance of trial
counsel is accordingly DENIED.
C. 	Ineffective Appellate Counsel
Finally, Defendant complains that although his appellate counsel argued on
appeal that the jury instruction caused a constructive amendment or a fatal variance, his
counsel was ineffective for failing to advise the appellate court that trial counsel had
conceded Defendant’s March 20th possession of the gun.47 	A transcript of the closing
argument was, however, available to the appellate court. 	Accordingly, even if counsel’s
performance was deficient under Strickland, Defendant has not shown “that ‘there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different’.”48 	Moreover, the Court of Appeals is in a better
position than this Court to determine whether knowing this additional fact, if unknown
before, would have changed the panel’s opinion in order to satisfy the second prong of
Strickland. Defendant’s petition based upon ineffective assistance of appellate counsel is
accordingly DENIED.
46 Babbitt, 151 F.3d at 1173.
47 Docket 116 at 26–28.
48 Babbitt, 151 F.3d at 1173.
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D. 	Certificate of Appealability
One of the primary purposes of an indictment is to inform a defendant of
“what he is accused of doing in violation of the criminal law, so that he can prepare his
defense.”49 	The Court is cognizant here of Defendant’s underlying concern: 	He was
indicted of possession “on or about” March 22nd. 	The government’s case focused on
possession during the March 22nd traffic stop. Counsel accordingly conceded possession
in the photos taken two days earlier. The jury expressed a desire to convict solely on the
photos without consideration of the traffic stop. This Court’s instruction to the jury focused
on the March 22nd date, and the “on or about” language, but did not clarify, specifically,
that they had to find possession during the traffic stop, rather than at the time the photos
were taken. If the jury convicted solely on the possession in the photographs, and not on
the events of March 22, Defendant’s entire defense arguably was flawed.50
The primary issue before this Court was whether Defendant was deprived of
his constitutional right to effective assistance of counsel by his trial or appellate counsel.
This Court concludes that Defendant has made a substantial showing of the denial of a
constitutional right, because reasonable jurists could debate the validity of Defendant’s
arguments regarding the Court’s answer to the jury question, and/or how this issue was
handled by his attorneys at trial and on appeal. Therefore, the Court GRANTS the issuance
of a Certificate of Appealability on these issues pursuant to 28 U.S.C. § 2253(c).
49 United States v. Adamson, 291 F.3d 606, 616 (9th Cir. 2002), (citing United States v.
Tsinhnahijinnie, 112 F.3d 988, 991 (9th Cir. 1997)).
50 See counsel’s affidavit at Docket 116-2.
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IT IS SO ORDERED this 23rd day of March, 2021, at Anchorage, Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
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