IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-11274

UNITED STATES OF AMERICA,

Plaintiff – Appellee

v.

GREGORY LASHON THOMAS,

Defendant – Appellant 

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:11-CR-168-D-1

Before KING, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

A jury convicted Gregory Lashon Thomas of one count of conspiracy to 

commit mail fraud in violation of 18 U.S.C. § 1349 and three counts of mail 

fraud and aiding and abetting in violation of 18 U.S.C. §§ 1341 and 1342 in 

connection with a mortgage-fraud scheme. Thomas appeals several rulings of 

the district court during trial and at sentencing. For the reasons below, we 

AFFIRM the district court’s judgment. 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 16, 2013

Lyle W. Cayce

Clerk

 

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I. Factual and Procedural Background

In 2008, Gregory Lashon Thomas conspired with Aja D. Crawford and 

Ernest Ohenekitiwa McMillan to execute a mortgage-fraud scheme that 

involved fraudulently obtaining mortgages in order to purchase residential 

properties in and around Dallas, Texas. On June 21, 2011, Thomas, Crawford, 

and McMillan were indicted for conspiracy to commit mail fraud in violation of 

18 U.S.C. § 1349, and three counts of mail fraud and aiding and abetting under 

18 U.S.C. §§ 1341 and 1342 for transactions involving three specific 

properties.1 In addition to the three properties included in the indictment, 

Thomas was allegedly involved in twenty-six other fraudulent property 

transactions between 2006 and 2009, all of which operated in a similar 

manner. The total amount of fraudulently obtained loans for all of the 

properties was allegedly $5,842,000, with the actual loss for these properties 

totaling $2,094,000. Thomas pled not guilty to all four counts. 

Thomas’s jury trial commenced on August 27, 2012, and continued for 

nine days. The jury found Thomas guilty on all four counts. The court later

sentenced Thomas to concurrent terms of 189 months’ imprisonment for each 

count, followed by concurrent three-year terms of supervised release, and it 

ordered restitution in the amount of $2,094,000. Thomas timely appealed.

II. Discussion

Thomas appeals the introduction of inadmissible character evidence

during trial, the district court’s refusal to permit him to examine a juror 

regarding allegations of misconduct, and the district court’s calculation of his 

offense level at sentencing. We review each in turn. 

1 On August 11, 2011, the government filed a one-count superseding Information 

naming only Crawford, which charged her with conspiracy to commit mail fraud. On 

November 22, 2011, the government filed a one-count superseding Information naming only 

McMillan, charging him with conspiracy.

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A. Inadmissible Evidence

The government called Thomas’s co-conspirator, Crawford, to testify to

the details of the mortgage-fraud scheme. During cross-examination on the 

third day of trial, Crawford spontaneously mentioned that Thomas was a 

convicted criminal. Crawford mentioned that she met McMillan and another 

individual named Steve at a halfway house, and defense counsel asked for 

clarification: 

Q: And, again, for the jury, a halfway house is what?

A: I guess when you do time in federal prison they send you to a 

halfway house to live there until I guess you can go in the 

streets.

Q: These are convicted criminals then you’re dealing with?

A: Yes. Ernest [McMillan] and Greg [Thomas] I didn’t know at 

the time were convicted criminals, yes.

Defense counsel asked to approach the bench regarding the remark, and 

the court conducted a brief conference. Defense counsel argued that 

Crawford’s testimony violated the court’s orders concerning evidence of prior 

convictions. The parties believed that Crawford misspoke and that she had 

been talking about McMillan and Steve, not Thomas, so the court asked if 

defense counsel “could clear that up.” Defense counsel did not believe he could

because, even if Crawford was referring to Steve, Thomas did have a prior 

conviction. The court suggested that defense counsel clarify whether Crawford 

had accidentally referred to Thomas, by asking, “Did you misspeak and did you 

mean to say that you met Steve and Ernest [McMillan] at the halfway house?” 

However, defense counsel proceeded with the cross-examination without 

clarifying Crawford’s testimony or asking the question proposed by the court. 

Shortly thereafter, defense counsel questioned Crawford regarding her 

acquaintances, asking her, “How many convicted felons do you know ma’am?” 

Crawford replied, “I don’t know. I mean, I didn’t know Greg [Thomas] was a 

convicted felon[.]” Defense counsel attempted to interrupt Crawford and stop 

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her testimony, and he ultimately asked if he could approach the bench because 

he could not “control the witness.” The court instructed the witness to answer 

the questions and refrain from arguing with defense counsel. 

Defense counsel continued questioning Crawford, but the court 

eventually asked counsel to approach the bench before redirect. At that time, 

defense counsel moved for a mistrial based on the witness’s statements, which 

the government opposed. The court denied the motion, finding that 

The references have been very brief in context. They did not 

clearly indicate that the defendant had a criminal record. As this 

occurred early in what is expected to be a two-week trial, and at 

this point I don’t even know if the defendant is going to testify or 

not. And if he were to testify this would come into evidence.

Defense counsel then requested that the court instruct the jury to disregard 

any statement that Crawford made about Thomas being a convicted felon. 

The court believed that an instruction would only highlight the statements to 

the jury, so it declined to give one. However, at the close of trial, the judge 

gave the jury a general limiting instruction:

Additionally, the defendant is on trial here only for the offenses set 

forth in the indictment. . . . 

The defendant is not on trial for any acts, conduct, or offense not 

alleged in the indictment. . . .

During the trial, you have heard evidence of alleged acts of the 

defendant that may be similar to those charged in the indictment 

but that were allegedly committed on other occasions. You must 

not consider any of this evidence in deciding if the defendant 

committed the acts charged in the indictment. However, you may 

consider this evidence for other very limited purposes.

1. Standard of review

We review evidentiary rulings for abuse of discretion when the party 

timely objects to the ruling. United States v. Simmons, 470 F.3d 1115, 1124 

(5th Cir. 2006). In the absence of a proper objection, we review the evidentiary 

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ruling only for plain error. See Fed. R. Evid. 103(e); United States v. Williams, 

620 F.3d 483, 488–89 (5th Cir. 2010). To prevail under the plain error 

standard, the objecting party must show “clear or obvious error that affects his 

substantial rights”; even then, we retain discretion over whether to correct the 

forfeited error. United States v. Redd, 355 F.3d 866, 874 (5th Cir. 2003)

(internal quotation marks omitted). If the party can show that the error was 

clear and affected his substantial rights, we will only reverse when that error 

“seriously affects the fairness, integrity, or public reputation of judicial 

proceedings.” United States v. Fullwood, 342 F.3d 409, 413 (5th Cir. 2003).

2. Analysis

In evaluating the prejudicial effect of a witness’s remark, we give 

considerable weight to the trial judge’s assessment. United States v. Valles, 

484 F.3d 745, 756 (5th Cir. 2007). “A prejudicial remark may be rendered 

harmless by curative instructions to the jury.” United States v. Nguyen, 28 

F.3d 477, 483 (5th Cir. 1994) (citations omitted). However, in some instances, 

the district court may determine that a specific curative instruction is 

inappropriate because it would merely call further attention to the evidence, 

and thus be more harmful than the original comment. United States v. Paul, 

142 F.3d 836, 844 (5th Cir. 1998). When the testimony is not highly prejudicial, 

as here, a general limiting instruction to the jury at the close of trial will cure 

the admission of erroneous evidence. See id. (holding that the court’s 

instruction that “the Defendants are not on trial for any act or conduct not 

alleged against him [sic] in the indictment” was sufficient to cure the effect of 

inadmissible testimony).

Here, Crawford made two spontaneous comments that the government 

concedes constitute inadmissible character evidence. Thomas did not object to 

the statements, but he later moved for a mistrial and for a curative instruction.

Since Thomas did not object to Crawford’s testimony or appeal the denial of his 

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motion for a mistrial, we now consider whether the introduction of the 

testimony and the court’s decision not to provide a specific curative instruction 

to the jury amounts to plain error that seriously affected the integrity and 

fairness of Thomas’s trial. 

Contrary to Thomas’s assertions, Crawford’s testimony was not highly 

prejudicial. We have previously found under the abuse of discretion standard, 

which is higher than a plain error standard, that “[t]he inadvertent and 

fleeting reference to [the defendant’s] prior incarceration could not have had a 

substantial impact on the jury, especially considering all of the testimony the 

jury heard over the course of [the] trial, which lasted almost two weeks.” 

United States v. Naranjo, 309 F. App’x 859, 867–68 (5th Cir. 2009) 

(unpublished); see also United States v. Elashyi, 554 F.3d 480, 507–08 (5th Cir. 

2008) (holding a “prejudicial” tape recording did not warrant a mistrial because 

it was short and presented during a two-week trial); United States v. Harris, 

205 F. App’x 230, 231–32 (5th Cir. 2006) (unpublished) (holding that there was 

no significant likelihood that two spontaneous comments by a witness 

containing inadmissible evidence had a substantial impact on the jury and 

deferring to the district court’s assessment of the testimony’s prejudicial 

effect). Although Thomas makes much of the length of the jury deliberations 

and the fact that Crawford’s testimony was re-read to the jury, these factors 

do not support a finding that Crawford’s two brief statements during the course 

of a nine-day trial were so harmful as to seriously affect the fairness of the 

proceeding. 

Likewise, the district court did not err when it declined to give a specific 

curative instruction. The district court is in the best position to evaluate the 

prejudicial effect of testimony, and it determined that the testimony’s impact

was minimal and that a curative instruction would only highlight the issue to 

the jury. In lieu of providing a specific instruction, the court gave a general 

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limiting instruction to the jury at the close of evidence, which we have held is 

a sufficient means to neutralize any prejudice resulting from inadmissible

testimony. Paul, 142 F.3d at 844. Thomas argues that this general 

instruction, which was embedded in nineteen pages of jury instructions, is 

insufficient to overcome Crawford’s statements. However, we presume that 

jurors follow all instructions provided to them, see id., so the length of the jury 

instructions does not overcome a single instruction’s curative value. Given the 

nature and circumstances surrounding the testimony and the decision of the 

court to provide a general curative instruction, we find no plain error and 

affirm the decision of the district court.

B. Juror Misconduct2

On the first day of trial, the government called Gail Andrich to testify

regarding the process of obtaining a mortgage loan, the information lenders 

consider in a loan application, and the loan provided for one of the properties 

named in the indictment. During her testimony, she recognized one of the 

jurors as someone with whom she had briefly interacted prior to trial. She 

informed the government of this encounter after the close of the first day, and 

the government disclosed the contact to the court the next morning. Before the 

court, but not the jury, the government and defense counsel questioned 

Andrich about her interaction with the juror. Andrich stated that she had met 

one of the jurors during the lunch break, prior to his empanelment. Andrich 

had purchased lunch at a McDonald’s restaurant that was located near the 

courthouse. When she walked back to the courthouse in order to sit outside

and eat her lunch, she was followed by several homeless individuals. The juror 

2 The parties in their briefing classify this issue as a juror misconduct issue. Actually, 

at the time of the events described, the venire person had not yet been empanelled. Since 

the parties have analyzed the issue as one of juror misconduct, we adopt the same analysis 

without expressing an opinion as to whether that framework is correct.

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was also sitting outside the courthouse, and Andrich made a comment to him 

that she must be a “magnet.” She sat alone, but the juror moved closer to her; 

Andrich testified that it was as if he was trying to “protect” her. Andrich 

offered him a piece of gum, and the two made “small talk.” She testified that 

he was not wearing anything to indicate that he was a potential juror. The 

interaction lasted for approximately ten minutes. 

While inside the McDonald’s, Andrich had purchased lunch for three of 

the homeless individuals and gave money to two others. Andrich did not 

believe that the juror had witnessed any of her charitable acts. She also 

testified that she did not think that the juror had followed her or that he was 

attracted to her. She had no other contact with the juror, nor did she plan to 

have further contact with him. 

After interviewing the witness, defense counsel asked to call the juror to 

testify about his conversation with Andrich in order to determine whether he 

was attracted to her. The court denied the request, believing that interviewing 

the juror would “make it a bigger issue with the juror than it would otherwise 

be.” The court explained that “[t]he conduct that [it] might be most concerned 

about, that is [the juror’s] viewing a witness as being generous to homeless 

people,” was not an issue because it found that Andrich’s testimony was 

credible and that her generosity occurred at a “separate location.” The court 

concluded that the interaction would not impair the juror’s ability to be fair 

and impartial and proceeded with the trial. 

1. Standard of Review

A district court’s response to alleged juror misconduct is reviewed for 

abuse of discretion. United States v. Ebron, 683 F.3d 105, 125 (5th Cir. 2012).

“A trial court abuses its discretion when its ruling is based on an erroneous 

view of the law or a clearly erroneous assessment of the evidence.” United 

States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008) (citation omitted).

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2. Analysis

“[I]n evaluating a claim of juror misconduct, the law [] presumes that the 

jury is impartial and the burden rests on the defendant to show otherwise.”

United States v. York, 600 F.3d 347, 358 (5th Cir. 2010). Moreover, “a district 

court, based on its unique perspective at the scene, is in a far superior position 

than [the appellate court] to appropriately consider allegations of juror 

misconduct, both during trial and during deliberations.” Ebron, 683 F.3d at

126 (citation omitted). Accordingly, the district court “enjoy[s] wide discretion 

to determine the proper scope of an investigation into whether just cause to 

dismiss a juror exists.” United States v. Edwards, 303 F.3d 606, 634 (5th Cir. 

2002). When the district court makes a reasonable factual determination that 

a juror can decide the case impartially, the court has not abused its discretion.

Cf. United States v. Nieto, 721 F.3d 357, 370 (5th Cir. 2013).

Thomas argues that the district court erred in denying him the 

opportunity to question the juror, since only the juror would be able to confirm 

whether he witnessed Andrich’s charity. We disagree. Upon learning about 

the contact, the district court promptly addressed the situation by interviewing 

the witness. Andrich testified that her generosity occurred at one location and 

that she spoke with the juror at a separate location; the district court

determined that Andrich was credible and that interviewing the juror would 

only inflame the matter. Thomas offers no evidence to support a finding to the 

contrary, other than to argue that only the juror could confirm with certainty

whether he had seen Andrich’s generosity. In light of the facts and the 

testimony, we find that the district court did not abuse its discretion in 

declining to call the juror for questioning. 

C. Sentencing

Thomas appeals the district court’s calculation of his offense level at 

sentencing, arguing that it erred in: (1) determining the “actual loss” caused 

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by his crimes; (2) declining to apply a two-level reduction for acceptance of 

responsibility; and (3) applying a two-level enhancement for obstruction of 

justice.3 

1. Standard of Review

The district court’s legal interpretation of the United States Sentencing 

Guidelines Manual (“Guidelines”) is a question of law and is reviewed de novo. 

United States v. Moore, 708 F.3d 639, 645 (5th Cir. 2013). The court’s factual 

findings are reviewed for clear error. United States v. Cisneros-Gutierrez, 517 

F.3d 751, 764 (5th Cir. 2008). 

2. Relevant Conduct and Loss Calculation

Under the Guidelines, if the defendant is convicted of mail fraud, he or 

she receives an enhancement based on the monetary loss caused by the crime. 

See U.S. Sentencing Guidelines Manual § 2B1.1(b). When the loss is more than 

$400,000, but not more than $1,000,000, the defendant receives a fourteenlevel enhancement; for losses above $1,000,000, but not more than $2,500,000, 

the defendant receives a sixteen-level enhancement. Id. § 2B1.1(b)(1)(H) & (I). 

The commentary to the Guidelines explains that the loss caused by the crime 

is the greater of actual loss or intended loss, where actual loss is the 

“reasonably foreseeable pecuniary harm that resulted from the offense.” Id. 

§ 2B1.1 cmt. n.3(A). The calculation of loss need not be precise; the sentencing 

judge “need only make a reasonable estimate of the loss.” Id. § 2B1.1 cmt. 

n.3(C). The court is not limited to the losses resulting from the specific conduct 

for which the defendant was convicted, and it may also include “relevant 

conduct” in its calculation. United States v. Randall, 157 F.3d 328, 331 (5th 

3 Because a reduction of his offense level by only one point would have resulted in a 

lower sentence, Thomas also argues that these errors were not harmless and asks the panel 

to vacate his sentence and remand for re-sentencing. However, since we find that the district 

court did not commit error at sentencing, we need not consider his final argument.

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Cir. 1998) (citing U.S. Sentencing Guidelines Manual § 1B1.3). Relevant 

conduct includes offenses that are part of a common scheme or plan that relates 

to the underlying offense. See U.S. Sentencing Guidelines Manual 

§ 1B1.3(a)(1)(B). “For two or more offenses to constitute part of a common 

scheme or plan, they must be substantially connected to each other by at least 

one common factor, such as common victims, common accomplices, common 

purpose, or similar modus operandi.” Id. § 1B1.3 cmt. n.9(A).

The court relied on the presentence report (“PSR”) to conclude that the 

seventeen sales to which Thomas objects constituted “relevant conduct,” and it 

included those properties in the loss calculation. The PSR is presumed 

reliable, and the sentencing court may rely on the PSR and adopt it in the 

absence of rebuttal evidence. United States v. Alaniz, 726 F.3d 586, 619 (5th 

Cir. 2013). The burden is on the defendant to show that the information in the 

PSR “is materially untrue.” Id. (citation omitted). Thomas did not provide 

evidence to the district court to support his objection to the inclusion of the 

seventeen properties in the PSR, and he cannot overcome his burden to show 

that the PSR was erroneous with objections alone. United States v. Huerta, 

182 F.3d 361, 364 (5th Cir. 1999). On appeal, he rebuts the PSR by arguing 

that some of the conduct occurred two years prior to the charged offenses. 

However, this oversimplifies the facts, as the PSR shows that the totality of 

the relevant conduct, i.e., fraudulently obtaining mortgage loans, occurred 

consistently throughout 2006, 2007, 2008, and 2009. 

Moreover, the PSR plainly describes its methodology for calculating loss, 

see PSR ¶ 28 (“The loss amounts are based on the original loan amount minus 

the money that was recouped following the sale of the property”), so Thomas’s 

assertion that there is no explanation for the loss calculation is patently wrong. 

We have previously approved this same method in other mortgage fraud cases. 

See United States v. Murray, 648 F.3d 251, 255 (5th Cir. 2011); United States 

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v. Goss, 549 F.3d 1013, 1017 (5th Cir. 2008). Thus, there is no legal error in 

the court’s loss calculation.4

3. Acceptance of Responsibility

The Guidelines provide a two-level reduction when “the defendant 

clearly demonstrates acceptance of responsibility for his offense.” U.S. 

Sentencing Guidelines Manual § 3E1.1(a). Section 3E1.1’s application notes 

explain, “[t]his adjustment is not intended to apply to a defendant who puts 

the government to its burden of proof at trial by denying the essential factual 

elements of guilt, is convicted, and only then admits guilt and expresses 

remorse.” Id. § 3E1.1 cmt. n.2. There is a narrow exception—the reduction is 

appropriate if the defendant goes to trial only to preserve issues that do not 

relate to factual guilt, such as a constitutional challenge to the statute. Id. 

Thomas appeals the district court’s refusal to apply the reduction for 

acceptance of responsibility on the ground that he provided information to the 

FBI about another individual wanted for a similar crime.5 Thomas did not 

raise this objection to the district court, so the standard of review is for plain 

error. United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). 

Thomas contested his guilt and went to trial. At the sentencing hearing, 

the district court commented that it questioned whether Thomas was truly 

remorseful based on the statements he made at the hearing. While Thomas 

did provide some information to the FBI concerning the criminal actions of 

4 Thomas also contends that the district court should have weighed the impact of the 

“housing bubble” in determining loss. This argument is meritless. First, any such 

consideration would be speculative. Second, the Guidelines make it clear that the 

calculations need not be precise, only reasonable, and holding Thomas accountable for the

actual amount each lender lost in each transaction is reasonable.

5 Thomas also claims that he is being “penalized” for exercising his constitutional right 

to a jury trial. His argument is meritless. Thomas’s sentence was not enhanced because he 

chose to go to trial. Rather, he was denied a reduction because he has not accepted 

responsibility for his crime.

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another individual, this does not mitigate the fact that Thomas protested his 

own guilt, as was his right. Thus, we find no plain error in the district court’s 

refusal to apply this reduction. 

4. Obstruction of Justice Enhancement

The Guidelines authorize a two-level increase in offense level for 

obstruction of justice “when a defendant engages in conduct which ‘obstructed 

or impeded, or attempted to obstruct or impede, the administration of justice 

during the investigation, prosecution, or sentencing of the instant offense.’” 

United States v. Lowder, 148 F.3d 548, 552 (5th Cir. 1998) (citations omitted).

The PSR states that in 2010, Thomas contacted Crawford and told her 

not to speak to the FBI and, if she did, to tell them that the information in the 

loan packages came from McMillan, which was false. In March 2011, he again 

advised her not to speak with the FBI. After Crawford was interviewed by the 

FBI on March 29, 2011, Thomas visited Crawford and again told her not to say 

anything to the FBI. Several days later, he contacted her once more with the 

same warning. After Thomas and Crawford were indicted, he sent a Facebook 

message to Crawford calling her a “dirty rat” and accusing her of lying. Based 

on these incidents, the district court applied the obstruction of justice 

enhancement at sentencing. 

Thomas challenges the factual basis of the district court’s decision by 

attacking Crawford’s credibility as well as the court’s legal interpretation of 

the Obstruction of Justice Guideline. Thomas’s factual challenge is without 

merit. The district court may rely on the PSR in making its factual 

determinations. Alaniz, 726 F.3d at 619. Thomas did not present evidence to 

rebut the PSR’s findings that he had engaged in aforementioned interactions 

prior to his arrest; rather, he makes the blanket assertion that Crawford is not 

credible. This does not demonstrate that the court’s reliance on the PSR was 

unreasonable. Thus, the court’s factual findings regarding Thomas’s actions 

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are presumed correct. Turning the court’s application of the Guideline, the 

district court properly concluded that Thomas engaged in obstruction of justice 

in light of his repeated instructions to Crawford not to cooperate with the FBI

and his direction to make false statements. Thus, we find no legal error.

III. Conclusion

Because Thomas has not demonstrated any error on the part of the 

district court, we AFFIRM the judgment of the district court.

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