United States of America v. Stephen W. Thompson

*
Honorable Louis H. Pollak, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2338
UNITED STATES OF AMERICA
v.
STEPHEN W. THOMPSON,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Action No. 03-cr-00863)
District Judge: Honorable Joseph E. Irenas
Argued December 13, 2007
Before: SLOVITER and AMBRO, Circuit Judges
POLLAK,* District Judge
(Opinion filed: January 3, 2008)
Christopher D. Warren, Esquire (Argued)
1500 Walnut Street
Suite 1500
Philadelphia, PA 19102-0000
Counsel for Appellant
Christopher J. Christie

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1
The mandatory minimum sentence for violation of 18 U.S.C. § 2251(a) was raised to
15 years in April 2003. The Government does not contend that the conduct at issue in
this case occurred after that date.
2
We do not attempt to discern from the inconsistent verdicts either prejudice suffered
by Thompson or lenity by the jury. See United States v. Powell, 469 U.S. 57, 65-66
(1984) (explaining that in cases where the jury has reached a mixed verdict, that
inconsistency might arise from lenity, mistake, or compromise, and in any event is not a
basis for overturning a conviction).
2
United States Attorney
George S. Leone
Chief, Appeals Division
Office of the United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102-0000
Glenn J. Moramarco (Argued)
Assistant U.S. Attorney
Office of the United States Attorney
Camden Federal Building & Courthouse
401 Market Street
P.O. Box 2098, 4th Floor
Camden, NJ 08101-0000
Counsel for Appellee
OPINION
AMBRO, Circuit Judge
After a jury trial, Appellant Stephen Thompson was convicted and sentenced to the
ten-year mandatory minimum sentence1 for violation of 18 U.S.C. § 2251(a). He was
found not guilty by reason of insanity for the charged violation of 18 U.S.C. §
2252A(a)(5)(B).2 He appeals his conviction under § 2251(a), arguing that the District

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3
Under that standard we review for error, not raised at trial, that is plain and that
affects substantial rights. United States v. Cotton, 535 U.S. 625, 631 (2002). We correct
such an error if it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” United States v. Olano, 507 U.S. 725, 736 (1993).
3
Court questioned his expert witnesses inappropriately. We have jurisdiction under 28
U.S.C. § 1291 and will affirm.
Thompson contends that the District Court’s questioning of Dr. Gary Glass
deprived him of a fair trial and violated Fed. R. Evid. 704(b), which prohibits expert
witnesses from testifying to the ultimate issue of a defendant’s sanity. The parties
disagree about the appropriate standard of review. As discussed below, even assuming
without deciding that we should not review for plain error,3 we reject Thompson’s
arguments.
First, the District Court’s questioning of Dr. Glass did not deprive Thompson of a
fair trial. See, e.g., United States v. Beaty, 722 F.2d 1090, 1093 (3d Cir. 1983)
(describing our role in reviewing the conduct of a trial judge as to “determine whether his
conduct was so prejudicial as to deprive [the defendant] of a fair, as opposed to a perfect,
trial”). Its seven questions posed to Dr. Glass were but a snippet in a two-week trial,
counsel for Thompson was able to question Dr. Glass further to address any perceived
effect of the Court’s questioning, and the District Court instructed the jury not to discern
from its questioning of Dr. Glass any bias or opinion as to the proper outcome of the trial.
Moreover, the questions posed by the District Court did not pertain to the core of
Thompson’s insanity defense, which was that he did not understand the moral

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4
We have explained that a prosecutor violates Rule 704(b) by asking questions plainly
designed to elicit the expert’s testimony about the mental state of the defendant. See
United States v. Watson, 260 F.3d 301, 308 (3d Cir. 2001). We need not decide whether
such a rule applies with equal force to questioning by the District Court, as we affirm
even assuming that it does.
5
Thompson also contends that the District Court’s questioning of Dr. Joseph
DiGiacomo was improper. Thompson’s counsel conceded at oral argument that, because
of the absence of a contemporaneous objection, we review that questioning for plain
error. Nothing in the questioning of Dr. DiGiacomo rises to the level of reversible plain
error. It is hard to imagine how those questions might prejudice Thompson, as they do no
more than clarify the testimony of the witness. A District Court would be prohibited from
asking almost any question if this questioning were plain error.
4
wrongfulness of his actions, and they sought to minimize the effect of Dr. Glass’s
previous inappropriate testimony about Thompson’s mental state.
Second, even assuming a violation by the District Court of Fed. R. Evid. 704(b),
this does not merit reversal. If the District Court erred by asking questions that were
highly likely to elicit Dr. Glass’ testimony about Thompson’s mental state,4 that error was
harmless for the reasons discussed above. 5
Accordingly, we affirm the judgment of the District Court.

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