NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 16-1360

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UNITED STATES OF AMERICA

v.

BLAIR THOMAS, JR.,

 Appellant 

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Criminal Action No. 2-14-cr-00096)

District Judge: Honorable Gerald A. McHugh

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Submitted Under Third Circuit L.A.R. 34.1(a)

March 13, 2017

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Before: GREENAWAY, JR. and SHWARTZ, Circuit Judges, and 

SIMANDLE, Chief District Judge.

(Filed: July 18, 2017)

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OPINION**

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 The Honorable Jerome B. Simandle, Chief Judge of the United States District 

Court for the District of New Jersey, sitting by designation. Judge Simandle assumed 

senior status on June 1, 2017.

** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent.
2

GREENAWAY, JR., Circuit Judge.

After a four-day federal jury trial, Blair Thomas, Jr. was convicted of multiple 

robbery and firearm counts. On appeal he argues that the District Court erred in denying 

both his motion for a mistrial and his motion to suppress physical evidence. He also 

argues that his convictions for using and carrying a firearm during a crime of violence are 

invalid. For the reasons that follow, we will affirm the District Court’s judgment of 

conviction.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Factual Background

1. Attempted Robbery of the Yeadon Post Office 

On the morning of January 22, 2014, a man entered the post office in Yeadon, 

Pennsylvania. The post office was empty, save for a postal clerk at the counter. When 

the man walked up to the counter, the postal clerk noticed a waxy, tan substance covering 

the man’s face, along with a mustache, a pair of glasses, and a hat. 

The man then demanded ten $1,000 money orders, and presented the clerk with a 

note saying that he had a gun. The clerk bolted out of the post office, not knowing “if 

there was a gun or not.” SA 8. The man left, empty-handed. Surveillance cameras 

captured images of the man. 
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2. Attempted Robbery of the Darby Post Office

Later that same morning, a man entered the post office in Darby, Pennsylvania, a 

town neighboring Yeadon. This man also wore a tan mask, in addition to a grey hooded 

sweatshirt and grey sweatpants. 

He approached the counter and demanded $10,000 in money orders. When the 

clerk asked for identification, the man lifted up his shirt, pulled out a gun, and pointed it 

at the clerk. The clerk was “petrified.” SA 25. But a customer and a postal carrier soon 

entered the lobby and the man fled. 

3. Robbery of the Wells Fargo Bank

The next morning, a man in a tan mask, a pair of sunglasses, and a hat entered a 

Wells Fargo Bank in Springfield, Pennsylvania, a town in the same county as Yeadon and 

Darby. 

He handed a note to the greeter at the door, announcing that this was a robbery. 

The man then demanded that the tellers put money in his duffel bag and escort him to the 

bank vault. The tellers stuffed some bills in the duffel bag but refused to take him to the 

bank vault. Security cameras captured the robbery. 

4. The Investigation

Sean McStravick, the postal inspector assigned to investigate the robberies, rolled 

the three crimes into one investigation. Based on an anonymous tip, McStravick

contacted Jeremy Oneail, owner of an online mask making company. Oneail recognized 

the mask on both the Yeadon Post Office robber and the bank robber as the “Raj” mask. 
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His transaction records showed that on December 29, 2013, he sold one of his masks—a 

Raj mask—to “Blair Thomas, 136 Hirst Ave., Landsowne, Pennsylvania.” SA 296–297. 

McStravick used this information to obtain a federal search warrant. 

About a week after the attempted robbery of the Yeadon Post Office, postal 

inspectors executed a warrant at the 136 Hirst Avenue residence.

1

 A black BMW 

approached the residence at the same time as the inspectors. One of the inspectors, Rick 

Link, approached the BMW and yelled “Police, let me see your hands.” SA 253. The 

driver did not comply. Link then saw the driver’s arm move down toward the gearshift. 

He feared that the driver would run him over.2 The car moved, according to Link, about 

three to five feet before it stopped. Another postal inspector then pulled the driver from 

his seat. The driver was Blair Thomas, Jr. 

The postal inspectors arrested Thomas and removed the following items from the 

house: (1) a United States Postal Service box containing a mask from Oneail’s company; 

(2) a .45 caliber Ruger semi-automatic pistol with two magazines, one inside the weapon 

with seven rounds; (3) a black knit hat; (4) grey sweatpants; and (5) $3,000 in cash. The 

postal inspectors also removed a grey hooded sweatshirt, a pair of grey sweatpants, three

pairs of sunglasses, and a notebook from the black BMW, pursuant to a warrant. The 

 

1 The postal inspectors later verified that this was the residence of Thomas’s 

mother. This was also the address listed on Thomas’s driver’s license. 

2 The defense objected during this portion of Link’s testimony but the District 

Court held that Link could testify to what he feared. 
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imprinted handwriting on the cover of the notebook read “This is a robbery. I have a 

gun. Stay calm and print ten money orders, $1,000.” SA 278.

Meanwhile, Thomas waived his right to remain silent at the police station and 

agreed to speak with the postal inspectors. He wrote a confession, admitting to the 

following: he committed the two attempted robberies at the post offices and the robbery 

at the bank; he bought the Raj mask online using PayPal; he used the mask and the gun 

located at the 136 Hirst Avenue residence in the robberies; and he used the mask in all of 

the robberies, but only used the gun at the post offices.

B. Procedural History

A grand jury returned a six-count indictment charging Thomas with two counts of 

attempted robbery of a postal employee, in violation of 18 U.S.C. § 2114(a); two counts 

of using and carrying a firearm during a crime of violence, in violation of 18 U.S.C. 

§ 924(c)(1); one count of bank robbery, in violation of 18 U.S.C. § 2113(a); and one 

count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. 

§ 922(g)(1). 

The District Court on the eve of trial denied Thomas’s motion to suppress both the 

evidence seized from the 136 Hirst Avenue residence and the black BMW as well as the 

written, signed confession. 

At trial, the jury heard testimony from, among others, the postal clerks and bank 

employees whom Thomas had threatened, Oneail, McStravick, Link, a third postal 
6

inspector involved in the investigation, and a forensics expert. McStravick also read 

Thomas’s written confession into the record.

Before closing arguments, the government requested a jury instruction regarding 

consciousness of guilt, based on the testimony that Thomas initially disregarded Link’s 

command and that the black BMW rolled toward Link. The District Court denied the 

request, and the prosecutor made no mention of the BMW rolling toward Link in her 

closing argument. 

But the defense counsel did dwell on the testimony that the BMW rolled forward, 

albeit couching the significance of the testimony by saying it did not “really make a 

difference in the overall case itself.” App. 305. She went on to challenge Link’s and 

McStravick’s accounts of the BMW rolling forward by saying “[t]hat’s not what 

happened. That’s not what happened. But why try to infuse that into this case. We 

know it didn’t happen. You know why it didn’t happen . . . .” App. 306. And she 

explained why the testimony was “just irresponsible”:

You can’t do that in a case like this. Why? Why? Why when the government 

says they’ve got a mountain of evidence over here do they have to then infer that 

that young man was just trying to hurt a police officer? That’s just—it’s just not 

right. 

App. 307.

In rebuttal, the prosecutor responded to the defense counsel’s characterization of 

the incident:

And with regard to the testimony from . . . Inspector Link and Inspector 

McStravick about the car, there has been no evidence to suggest anything different 
7

other than their testimony. So I ask you, ladies and gentlemen, to use your 

common sense like you would every day and evaluate their testimony because the 

defense has not presented any evidence and you haven’t seen any evidence that 

shows anything different about what happened. [Defense counsel] said we know 

that’s not what happened. Well, how do we know that without evidence?

App. 310 (emphasis added).3 

This prompted the defense counsel to request a meeting at sidebar. The trial judge 

told the prosecutor that he was “going to instruct the jury to disregard that” and that he 

will “reserve judgment on this later.” App. 310. The prosecutor then attempted to 

explain to the jury what she meant:

Ladies and gentlemen, my comments about the defense presenting evidence, if I 

could, I just want to finish that the argument that that didn’t happen, [defense 

counsel’s] argument that we all know that that’s not happened, my comments were 

meant that that was argument and that you all did not hear evidence suggesting 

that that’s not what happened. 

App. 311 (emphasis added).

The Court then addressed the jury briefly:

[A]ny suggestion that the defense needs to put on evidence should be completely 

disregarded by you during your deliberations. I want to make that clear. The 

defense has zero, and I repeat zero, obligation to present any evidence on any issue 

before this jury.

Id. Following this instruction, the prosecutor attempted to further clarify what she meant: 

“Once again, my comments were meant so that that was argument and not evidence. So, 

again, there was no evidence to show anything other than what the agents told you about 

what happened with the car.” App. 311–312 (emphasis added). The prosecutor then 

returned to her rebuttal presentation.

 

3 The defense did not present any evidence.
8

Before the jury began deliberation, the trial judge reiterated the burden of proof:

I want to emphasize one more time the defense has zero obligation to present any 

evidence with respect to any element or any accusation in this case or in any case. 

The burden is always, and I repeat, always with the government to prove to your 

satisfaction with proof beyond a reasonable doubt every element of every offense. 

App. 321.

The defense then orally moved for a mistrial, arguing that the government 

impermissibly shifted the burden of proof and that the judge’s limiting instruction was 

insufficient. The judge took the matter under advisement. The jury returned a verdict 

later that day: guilty on all counts. The jury also concluded that Thomas brandished a 

firearm during the attempted robbery of the Darby Post Office.

The defense filed a mistrial motion about a week later. The Court denied it, 

finding that although the prosecutor’s comments were improper, the error was harmless. 

Thomas’s timely appeal followed.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have 

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). “We review a district 

court’s decision not to grant a mistrial on the grounds that the prosecutor made improper 

remarks in closing argument for abuse of discretion, and, if error is found, we apply 

harmless error analysis.” United States v. Molina-Guevara, 96 F.3d 698, 703 (3d Cir. 

1996) (internal citations omitted). We review the District Court’s determination that an 

offense is not a crime of violence, as required for conviction under § 924(c), for plain 
9

error because Thomas did not raise any objections below. See United States v. Robinson, 

844 F.3d 137, 140 (3d Cir. 2016). And we review the District Court’s determination on a 

motion to suppress evidence “for clear error as to the underlying factual findings” and we 

“exercise[] plenary review of the District Court’s application of the law to those facts.” 

United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002).

III. ANALYSIS

On appeal, Thomas provides three reasons why we should vacate his conviction 

and sentence and remand to the District Court for a new trial. First, he claims that the 

District Court erred when it denied his motion for mistrial based on the prosecutor’s 

remarks in her rebuttal argument. Second, he argues that his convictions pursuant to 18 

U.S.C. § 924(c) should be overturned because the predicate offense for each conviction, 

attempted postal robbery, as defined by 18 U.S.C. § 2114(a), does not qualify as a “crime 

of violence.” Finally, Thomas contends that the District Court erred when it denied his 

motion to suppress the physical evidence that the postal inspectors seized during the 

search of his mother’s home.

A. The District Court Did Not Abuse Its Discretion When It Denied the 

Motion for a Mistrial

Thomas argues that the prosecutor improperly shifted the burden of proof when 

rebutting defense counsel’s argument. This burden shift, according to Thomas, unfairly 

prejudiced him because “his defense depended on the jury’s proper understanding of the 

burden of proof.” Appellant’s Br. at 18. As a result, the District Court should have 
10

granted a mistrial, according to Thomas, because the jury may not have deliberated 

sufficiently, “especially on Count II” (using a firearm in the commission of the Yeadon 

Post Office attempted robbery). Appellant’s Br. at 18. We disagree. The District Court 

did not abuse its discretion in denying Thomas’s motion for a mistrial. 

To determine whether the District Court erred by failing to grant a mistrial, we 

look to “the scope of the improper comments in the overall trial context, the effect of any 

curative instructions given, and the strength of the evidence against the defendant.” 

United States v. Mastrangelo, 172 F.3d 288, 297 (3d Cir. 1999).

As a threshold matter, it is debatable whether these remarks even constituted 

impermissible burden shifting. In context, it appears that the prosecutor attempted to 

undercut the defense counsel’s argument—that McStravick and Link mischaracterized 

the details of Thomas’s arrest—by pointing out that there was no evidence to support this 

argument. But even if these remarks constituted impermissible burden shifting, we 

conclude that Thomas fails to establish the three Mastrangelo factors.

First, the remarks pertained to a collateral issue—what McStravick and Link 

perceived when they arrested Thomas. This testimony is collateral because whether it 

happened does not establish or disprove an element of Thomas’s charged offenses. The 

testimony’s absence from the government’s closing argument, and the defense counsel’s 

disclaimer that this testimony “doesn’t really make a difference in the overall case itself” 

further show that this testimony is collateral. Thus, the first Mastrangelo factor— “the 
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scope of the improper comments in the overall trial context”—cuts in favor of the 

government. Id. at 297.

Next, we conclude that the District Court’s immediate curative instruction was 

sufficient. “[W]e presume that the jury will follow a curative instruction unless there is 

an ‘overwhelming probability,’ that the jury will be unable to follow it and a strong 

likelihood that the effect of the [statement] would be ‘devastating,’ to the defendant.” 

United States v. Newby, 11 F.3d 1143, 1147 (3d Cir. 1993) (quoting Greer v. Miller, 483 

U.S. 756, 766 n.8 (1987)). No such overwhelming probability exists here, thus, we 

conclude that the second Mastrangelo factor—“the effect of any curative instructions 

given”—cuts in favor of the government. Mastrangelo, 172 F.3d at 297. 

Finally, we conclude that the third Mastrangelo factor—“the strength of the 

evidence against the defendant”—cuts in favor of the government. Id. We agree with the 

District Court that “the evidence suggestive of [Thomas’s] guilt in this case was 

overwhelming”—extensive witness testimony, physical evidence, and a written 

confession. App. 21 n.1. The prosecutor’s remarks in her rebuttal did not prejudice 

Thomas.

After considering the context of the prosecutor’s remarks, the District Court’s 

curative instruction, and the overall strength of the evidence against Thomas, we hold 

that the District Court acted within its discretion when it rejected Thomas’s mistrial 

motion.
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B. Attempted Robbery of a Postal Employee is a Crime of Violence When 

Contemporaneously Tried With § 924(c) 

Thomas argues that the convictions pursuant to 18 U.S.C. § 924(c) are invalid 

because the predicate offense for both convictions—attempted postal robbery, as defined 

by 18 U.S.C. § 2114(a)—is not a crime of violence. We review this ruling for plain error, 

and we find no such error here.

Thomas was indicted and convicted pursuant to 18 U.S.C. § 924(c), which 

provides that “any person who, during and in relation to any crime of violence . . . , uses 

or carries a firearm, or who, in furtherance of any such crime, possesses a firearm,” 

violates § 924(c). Section 924(c) goes on to define a “crime of violence” as a felony that: 

“(A) has as an element the use, attempted use, or threatened use of physical force against 

the person or property of another”; or “(B) . . . by its nature, involves a substantial risk 

that physical force against the person or property of another may be used in the course of 

committing the offense.” 18 U.S.C. § 924(c)(3)(A)-(B). 

Generally, when courts determine whether a crime is a crime of violence, they 

compare the elements of the predicate offense to the definition of “crime of violence,” in 

what is referred to as the categorical approach. See Taylor v. United States, 495 U.S. 575 

(1990). But the categorical approach is not necessary in cases where the “predicate 

offense . . . and the § 924(c) offense are contemporaneous and tried to the same jury.” 

Robinson, 844 F.3d at 141. 
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This is so because “[t]he jury’s determination of the facts of the charged offenses 

unmistakably shed light on whether the predicate offense was committed with ‘the use, 

attempted use, or threatened use of physical force against the person or property of 

another.’” Id. Thus, “analyzing a § 924(c) predicate offense in a vacuum is 

unwarranted” and “[t]he remedial effect of the ‘categorical’ approach is not necessary.” 

Id. at 141, 143.

Here, the charging document establishes that Thomas’s predicate offenses—

attempted robbery of a postal employee—and the § 924(c) offenses—using and carrying 

a firearm—occurred contemporaneously. And the District Court instructed the jury that 

the crime of robbery of a postal employee required that the defendant “put the life of a 

postal employee . . . in jeopardy by use of a dangerous weapon.” SA 399. There is no 

need to opine on whether Thomas’s hypotheticals could provide a basis for conviction 

under § 2114(a) because the jury had an adequate factual basis to conclude that 

§ 2114(a), committed while using and carrying a firearm, is a crime of violence. 

Accordingly, we will affirm Thomas’s § 924(c) convictions.

C. Law Enforcement Lawfully Obtained Thomas’s Personal Information 

from Oneail 

Thomas contends that the postal inspectors relied on a defective search warrant to 

search his mother’s residence because it was premised on illegally-obtained evidence 

seized from a third party. We disagree.
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At the outset, it bears mentioning that Thomas agrees that the current precedent 

“requires that the individual challenging the search have a reasonable expectation of 

privacy in the property searched . . . and that he manifest a subjective expectation of 

privacy in the property searched[.]” United States v. Kennedy, 638 F.3d 159, 163 (3d Cir. 

2011) (alteration in original) (citation omitted); Appellant’s Br. at 53. The Supreme 

Court “consistently has held that a person has no legitimate expectation of privacy in 

information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. 735, 

743–44 (1979). 

Applying the third party doctrine in this case is straightforward. Thomas provided 

a third party—Oneail—with his name, address, and certain financial information when he 

purchased the Raj mask. In so doing, Thomas abandoned his privacy interest in this 

information because he “assumed the risk that the information would be divulged to 

police.” Id. at 745.

Nonetheless, Thomas argues that the third party doctrine “should be overruled 

given the heightened concerns for privacy in the digital age and in light of Justice 

Sotomayor’s concurring opinion in United States v. Jones, 565 U.S. 400 (2012).” 

Appellant’s Br. at 53. At present, we are bound by the third party doctrine articulated in 

Smith and therefore affirm.

IV. CONCLUSION

For the reasons set forth above, we will affirm the District Court.