Not Precedential

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS

THIRD CIRCUIT
_____________
No. 15-2038
_____________
UNITED STATES OF AMERICA
v.
SHAROD THOMAS,
Appellant
_____________
Appeal from the United States District Court for the District of New Jersey
(Crim. No. 1-12-cr-00378-001)
District Judge: Hon. Rene Marie Bumb
_____________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 11, 2016
______________
BEFORE: MCKEE, Chief Judge, AMBRO, and SCIRICA, Circuit Judges

(Filed: February 12, 2016 )
______________
OPINION
______________
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
MCKEE, Chief Judge

Sharod Thomas appeals his conviction for being a felon in possession of a firearm.
For the reasons that follow, we will affirm.1
I.
Because we write primarily for the parties who are familiar with the facts and
procedural history, we set forth only those details necessary to our conclusion. The
government charged Thomas in a three-count indictment with: (1) possession of a firearm
after a felony conviction in violation of 18 U.S.C. 922(g)(1) (Count I); (2) possession of
heroin with intent to distribute in violation of 21 U.S.C. 841(a)(1), (b)(1)(C) (Count
II); and (3) possession of a firearm in furtherance of a drug trafficking offense in
violation of 18 U.S.C. 924(c)(1)(A) (Count III).
This appeal arises from a retrial of Thomas that followed a mistrial. The district
court conducted the retrial in two phases. During the first, the court tried only the
possession of heroin and possession of a firearm in furtherance of a drug trafficking
crime charges (Counts II and III). The jury returned guilty verdicts on both counts. In the
second phase, which focused on Count I, Thomas stipulated that he had previously been
convicted of a felony. The district court then instructed the jury on the three elements of
possession of a firearm after a felony conviction: In order to find the defendant guilty of
this count . . . you must find . . . beyond a reasonable doubt (1) that the defendant was
previously convicted of a felony; (2) that after his conviction, the defendant
knowingly possessed a firearm; and (3) that the defendants possession was in or
1
We have jurisdiction pursuant to 28 U.S.C. 1291 (2012).

2
affecting interstate or foreign commerce.2 The court defined the first element for the jury
and correctly noted that it had already defined the second element during the first phase
of the trial. However, the court mistakenly told the jury that it had previously provided an
instruction on the interstate commerce element, when, in fact, it had not. When the
district court asked if either party objected to these instructions, neither defense counsel
nor the prosecutor objected.
Moments after sending the jury to deliberate, the district court realized it had
failed to define the third element of Count I: interstate commerce. To remedy this
omission, it recalled the jury and proposed a supplemental instruction defining interstate
commerce. Although Thomas agreed that this supplemental instruction was substantively
correct, he objected to the proposed remedy. He argued that the instruction might
pressure the jury to return a verdict quickly. The court overruled Thomas objection and
gave the supplemental instruction. In doing so, the court first repeated all three elements
of the 922(g)(1) offense and then defined the interstate commerce element.
Shortly after receiving the amended instructions, the jury returned a guilty verdict
on Count I. After the court imposed sentence, Thomas filed this appeal, challenging his
conviction for being a felon in possession as charged in Count I.
J.A.II. 474; see also THIRD CIRCUIT MODEL CRIMINAL JURY INSTRUCTIONS
6.18.922G.
3
II.
A.
Thomas contends that the district courts initial failure to define the interstate
commerce element constitutes plain error. We disagree for two reasons. First, the district
courts immediate supplementation of its initial definition remedied any deficiency in its
original instruction. The Supreme Court has explained that a district court can often
correct . . . [a procedural] mistake so that it cannot possibly affect the ultimate outcome.3
Moreover, a jury instruction is not in error if taken as a whole and viewed in the light of
the evidence, [the instruction] fairly and adequately submits the issues in the case to the
jury [without confusing or misleading the jurors].4 Here, it cannot seriously be disputed
that the district courts prompt corrective action mitigated any deficiency in the original
instruction, and there was no error in the charge the district court ultimately gave.
Moreover, Thomas cannot show that the district courts initial omission of the
interstate commerce definition prejudiced him. In plain error review, we only reverse the
district court if we conclude the error affected the outcome of the proceedings.5 The
Puckett v. United States, 556 U.S. 129, 134 (2009).

United States v. Simon, 995 F.2d 1236, 1243 n.11 (3d Cir. 1993) (alterations in original)
(quoting United States v. Messerlian, 832 F.2d 778, 789 (3d Cir. 1987) (quoting United
States v. Fischbach & Moore, Inc., 750 F.2d 1183, 1195 (3d Cir.1984))); see United
States v. Crawford, 498 Fed. Appx. 163, 167 (3d Cir. 2012) (not precedential) (no error
where the district court misstated the law when reading one of its jury instructions and
then corrected the mistake).
5
United States v. Olano, 507 U.S. 725, 734 (1993) (The third and final limitation on
appellate authority under Rule 52(b) is that the plain error affect substantial rights. This is
the same language employed in Rule 52(a), and in most cases it means that the error must
have been prejudicial: It must have affected the outcome of the district court
proceedings.) (internal quotation marks and alterations omitted); see Neder v. United
4
evidence with respect to the interstate commerce element was overwhelming. The
government introduced evidence that the firearm at issue was manufactured in Ohio and
sold to a purchaser in Nevada.6 The ammunition that the police found in the weapon was
made in Idaho and Illinois.7 Thomas did not dispute any of this evidence.8 Instead, in
closing, defense counsel stated he did not have any problem with the testimony that
the gun . . . moved in interstate commerce.9 Given this strong and uncontested
evidence, the initial omission of the interstate commerce definition could not have altered
the outcome of the trial.10 Accordingly, no plain error occurred.
Thomas reliance on United States v. Retos11 and United States v. Xavier12 to argue
the contrary is misplaced. In those cases, we held that district court failures to provide
complete jury instructions constituted plain error because the evidence offered to support
the omitted elements was not overwhelming.13 That is simply not the situation here.
Therefore, the district courts original omission was harmless.
States, 527 U.S. 1, 15 (1999) (concluding that the omission of an element [in a jury
instruction] is an error that is subject to harmless-error analysis).
6
See J.A.II. 367.
7
See J.A.II. 368-69.
8
See J.A.II. 2A370-71.
9
J.A.II. 448.
10
See United States v. Saybolt, 577 F.3d 195, 206 (3d Cir. 2009) (in light of the evidence,
failure to instruct the jury on an element of the charged violation was harmless); United
States v. Stubbs, 103 F. Appx 471, 474 (3d Cir. 2004) (non-precedential) (holding that
the district courts failure to define the interstate commerce element of a 922(g)(1)
offense was not prejudicial).
11
25 F.3d 1220 (3d Cir. 1994).
12
2 F.3d 1281 (3d Cir. 1993).
13
See Retos, 25 F.3d at 1232; Xavier, 2 F.3d at 1287.
5
B.
Second, Thomas argues that the district courts provision of a supplemental jury
instruction coerced the jury into rushing its verdict.14 We disagree. We review a district
courts decision to give a supplemental jury instruction, and its contents, for abuse of
discretion.15 Pursuant to that standard, Thomas must show that the supplemental
instruction, when viewed in the context of the overall charge, was arbitrary, fanciful
or clearly unreasonable.16 Furthermore, because the supplemental instruction was legally
correct, the district court enjoy[ed] broad discretion in determining how, and under what
circumstances, that charge [would] be given.17
We have long recognized that supplemental jury charges should not be used to
blast a hung jury into verdict.18 We have also recognized that supplemental charges are
coercive where the charge caused the jury to be influenced by concerns irrelevant to
their task and reach a subsequent verdict for reasons other than the evidence
presented to it.19 But such a risk does not exist here. The district court gave a
supplemental instruction immediately after the jury was sent to deliberate, and the
instruction was directly relevant to the jurys task. The district courts amended
instruction only served to assist the jurors in applying the law to the uncontested evidence
Appellants Br. 15-16.
United States v. Jackson, 443 F.3d 293, 297 (3d Cir. 2006).
16
Id. (internal quotation marks omitted).
17
United States v. Civelli, 883 F.2d 191, 195 (2d Cir. 1989) (citing United States v.
Bayer, 331 U.S. 532, 536 (1947)).
18
Jackson, 443 F.3d at 297 (quoting United States v. Burley, 460 F.2d 998, 999 (3d Cir.
1972) (internal quotation marks omitted)).
19
United States v. Boone, 458 F.3d 321, 326 (3d Cir. 2006) (quoting Jackson, 443 F.3d at
297) (internal quotation marks omitted).
14
15
they heard at trial. Accordingly, we conclude that the district court did not abuse its
discretion in providing the supplemental instruction.
Thomas relies on the jurys rapid deliberation on the 922(g)(1) count to support
his coercion argument.20 He claims that the instruction must have been coercive because
a verdict of guilty was returned not more than three minutes 21 after the district court
provided the supplemental instruction. But the jurys quick verdict in this case is not
surprising. Thomas had stipulated to his felony conviction, satisfying the first element of
922(g)(1) off the bat. Moreover, in convicting Thomas of the 924(c) count during the
first phase of the trial, the jury found, beyond a reasonable doubt, that Thomas knowingly
possessed the firearm. This established the second element of 922(g)(1). Finally, as
previously explained, Thomas did not contest the governments evidence that the firearm
and ammunition traveled in interstate commerce. Thus, the third and final element of
922(g)(1) also was not a matter of serious debate. Accordingly, the strength of the
evidence, not the supplemental instruction, likely accounts for the swiftness of the jurys
decision.
20
Appellant Br. 17-19.

Appellants Br. 18. To support this theory, Thomas represents that our decision in
Snyder v. Claudio, 68 F.3d 1573, 1576 (3d Cir. 1995), found impermissible coercion of
juror when original jury required four hours to render verdict but reconstituted jury
required only twenty-nine minutes. Appellants Br. 17 (quoting Snyder, 68 F.3d at
1576). However, this direct quotation comes from a parenthetical summarizing a Ninth
Circuit decision. Snyder, 68 F.3d at 1576. In reality, Snyder holds nothing of relevance to
the present appeal.
21
Thomas also suggests that the district court should have instructed the jury to
begin its deliberations anew after providing the supplemental instruction.22 However, as
the government points out,23 Thomas rejected this course of action when the
governmental proposed it at trial, stating that he would prefer the deliberations to
continue instead of beginning anew.24 This Court will not review alleged errors that the
defendant invited or induced.25 We reject Thomas claim that the jury should have reinitiated its deliberations because Thomas himself thwarted that course of action.
Finally, we note that even if the supplemental instruction were somehow coercive,
any such coercion would be harmless. As previously explained, Thomas stipulated that he
was a career offender; the jury had already found Thomas knowingly possessed the
firearm and ammunition; and the evidence that the firearm and ammunition traveled in
interstate commerce was uncontested. Given this overwhelming evidence, a guilty verdict
on the 922(g)(1) count was inevitable. Accordingly, any abuse of discretion that did
occur was harmless.
Appellants Br. 16-17.

Appellee Br. at 24-25.
24
J.A.II. 481. When the district court discovered its omission, the government suggested
that the district court direct the jurors to start their deliberations anew. J.A.II. 481.
When the court responded Okay, Thomas immediately objected, stating: Im going to
object to that too because, again, I think its only reemphasizing that what was going on
was improper, and it wasnt. I think they should just be told to go on deliberating. J.A.II.
481 (emphasis added).
25
See United States v. Kolodesh, 787 F.3d 224, 231 (3d Cir. 2015); United States v.
Stewart, 185 F.3d 112, 127 (3d Cir. 1999); United States v. Console, 13 F.3d 641, 660
(3d Cir. 1993).
22
23
III.
For the reasons set forth above, we affirm the district courts judgment. Thomas
has failed to show that the district court committed a plain error in omitting the definition
of interstate commerce from its initial instruction. Likewise, Thomas has not shown that
the district court abused its discretion in providing a substantively-correct supplemental
instruction immediately after the jury began its deliberations.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

BEFORE: MCKEE, Chief Judge, AMBRO, and SCIRICA, Circuit Judges

MCKEE, Chief Judge

We have jurisdiction pursuant to 28 U.S.C. 1291 (2012).

Puckett v. United States, 556 U.S. 129, 134 (2009).

Appellant Br. 17-19.

Appellants Br. 16-17.

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