United States v. Holloman ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4391
EDWARD POWELL HOLLOMAN, JR.,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
EDWARD POWELL HOLLOMAN, JR.,
a/k/a Edward Paul Holloman, a/k/a
Edward P. Holloman, a/k/a Eddie  No. 99-4392
Powell Holloman, a/k/a Alfred
Woods, a/k/a Too Big Holloman,
a/k/a Chi Holloman, a/k/a Shy
Holloman,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of Virginia, at Abingdon.
James P. Jones, District Judge.
(CR-98-67, CR-98-14)
Submitted: November 28, 2000
Decided: December 29, 2000
Before WILKINS, LUTTIG, and TRAXLER, Circuit Judges.
2 UNITED STATES v. HOLLOMAN
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
COUNSEL
C. Randall Lowe, TATE, LOWE & ROWLETT, Abingdon, Virginia,
for Appellant. Robert P. Crouch, Jr., United States Attorney, S. Ran-
dall Ramseyer, Assistant United States Attorney, Abingdon, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Edward Powell Holloman, Jr., was convicted by a jury of four
counts of distribution of cocaine base (crack) in violation of 21
U.S.C.A. § 841(a), (b)(1)(C) (West 1999), and one count of distribu-
tion of cocaine base (crack) in violation of § 841(a), (b)(1)(B). He
also pled guilty to escape in violation of 18 U.S.C. § 751(a) (1994).
Holloman challenges his conviction and his sentence. We affirm.
In early 1998, Holloman sold crack five times to Chad Walker, a
confidential informant. Walker was under surveillance during each of
the charged transactions, and all but one of them was recorded.
Walker testified at Holloman’s trial. While Holloman was in custody
after his arrest, he wrote a letter to President Clinton in which he
explained how he came to begin "an ugly path of drug selling," and
stated that he accepted "full responsibility for [his] crimes." A short
time later, Holloman escaped from custody. He was recaptured a
month later and pled guilty to escape before his trial on the drug
charges.
UNITED STATES v. HOLLOMAN 3
Before trial, Holloman sought to exclude Walker’s testimony on
two grounds: (1) that his testimony would be inherently unreliable
because he had been paid a contingency fee for drug purchases and
testimony, and (2) that his testimony would violate the federal bribery
statute because he was a paid informant. In the same motion, Hollo-
man argued that Walker should not be permitted to testify that he had
seen Holloman carry a gun because such testimony would be more
prejudicial than probative. Holloman also sought to exclude the letter
to President Clinton on the ground that it did not contain a specific
admission to any of the charged offenses and would be more prejudi-
cial than probative. Finally, Holloman sought to exclude evidence of
his escape, arguing that his escape was "likely" prompted by a desire
to be with his family after he learned that he was HIV positive. The
district court denied these motions. During the trial, the tape record-
ings of Walker’s drug purchases from Holloman were played for the
jury. The sound quality was not good and a defense witness, a volun-
teer prison minister, testified that he did not recognize Holloman’s
voice on the tapes. The district court denied Holloman’s motion for
acquittal at trial, and his post-conviction motion for acquittal.
Holloman first contests the district court’s decision to admit Walk-
er’s testimony (particularly his testimony that Holloman carried a
gun). In the district court, Holloman relied in part on the reasoning
in United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), rev’d
en banc, 165 F.3d 1297 (10th Cir.), cert. denied, 527 U.S. 1024(1999). The original panel opinion in Singleton had been vacated
when the district court considered Holloman’s motion, and has since
been repudiated by the Tenth Circuit in its en banc decision.* The dis-
trict court found that the fee arrangement did not render Walker’s tes-
timony inadmissible, and declined to follow Singleton. The district
court’s evidentiary rulings are reviewed for abuse of discretion.
United States v. McMillon, 14 F.3d 948, 955 (4th Cir. 1994).
Holloman contends that Walker was paid a contingency fee to buy
drugs from him and for his subsequent testimony, which rendered his
testimony inherently unreliable and thus inadmissible. Holloman
*See also United States v. Richardson, 195 F.3d 192, 197 (4th Cir.
1999) (finding that federal bribery statute not violated by offers of immu-
nity or leniency to co-conspirators).
4 UNITED STATES v. HOLLOMAN
relies on United States v. Crim, 340 F.2d 989, 990 (4th Cir. 1965). In
that case, this court considered whether the testimony of two under-
cover agents should have been excluded under Williamson v. United
States, 311 F.2d 441 (5th Cir. 1962) (holding that testimony of
informer hired on contingent fee basis not admissible in absence of
explanation for use of such system of obtaining testimony), and
decided that the prerequisites set out in Williamson were met. Crim,
340 F.2d at 990 (citing Hill v. United States, 328 F.2d 988, 989 (5th
Cir. 1964)). Williamson has since been expressly overruled by the
Fifth Circuit, which held in 1987 that the credibility of both paid
informers and witnesses who are promised a reduced sentence for
their cooperation should be a matter for the jury to evaluate. United
States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987) (en
banc) (citing Hoffa v. United States, 385 U.S. 293, 311-12 (1966)).
Moreover, Walker was not paid to secure Holloman’s conviction.
Walker testified that he was paid $100 for each purchase of drugs that
amounted to a felony offense. There was no evidence that he was paid
to obtain evidence against Holloman specifically, or that he was paid
for his testimony against Holloman. Moreover, an officer of the Bris-
tol Police Department testified that narcotics investigators could not
buy drugs at the apartment complex because they were too well-
known. Thus, the government established its need for the assistance
of a paid informant. Consequently, we find that the district court did
not abuse its discretion in admitting Walker’s testimony.
Holloman separately challenges the admission of Walker’s testi-
mony that Holloman carried a gun during the last drug sale as more
prejudicial than probative. He argues that this evidence should have
been excluded under Rule 403 of the Federal Rules of Evidence
because its probative value was outweighed by the danger of unfair
prejudice. When the issue was raised again in the midst of Hollo-
man’s trial, the district court found that the evidence was relevant and
admissible, but did not specifically address Holloman’s previous con-
tention that the evidence could be unfairly prejudicial. We find no
abuse of discretion, however, because the testimony that Holloman
carried a firearm during one drug sale was not the kind of evidence
which might incite a jury to render an irrational verdict based on emo-
tion. See United States v. Queen, 132 F.3d 991, 994, 998 (4th Cir.
1997) (evidence not excludable under Rule 403 when it would not
UNITED STATES v. HOLLOMAN 5
"invoke emotion in place of reason as a decisionmaking mecha-
nism.").
We find next that the district court did not abuse its discretion in
finding that Holloman’s letter to President Clinton had probative
value in that it could be read as an admission to the distributions
charged in the indictment, and that, even if it were taken as referring
to past drug distributions, it was evidence of prior bad acts which was
admissible under Rule 404(b), and was not unduly prejudicial.
Holloman also challenges the district court’s admission of evidence
of his escape. Evidence of an accused’s flight, including escape from
custody, is generally admissible as an indication of guilt. United
States v. Murphy, 996 F.2d 94, 96 (5th Cir. 1993). Evidence of flight
is problematic only when the circumstances are such that a conscious-
ness of guilt cannot be inferred with confidence from the fact of
flight, as when it is not clear that the defendant actually fled, or when
he fled in response to an investigation of an unrelated crime, or when
it is not clear that he was aware when he fled that he was about to be
charged with a crime. United States v. Beahm, 664 F.2d 414, 419-20
(4th Cir. 1981); United States v. Myers, 550 F.2d 1036, 1049 (5th Cir.
1977). Here, Holloman did not introduce any evidence that he
escaped from custody for any reason other than to avoid prosecution.
His attorney merely argued that it was "as likely" that his flight indi-
cated that he wanted to be with his family after he was diagnosed HIV
positive as it was an indication of guilt. The district court thus did not
abuse its discretion in deciding that evidence of Holloman’s escape
was admissible.
Holloman contends that the government’s evidence was insuffi-
cient because it depended entirely on Walker’s testimony. Only
Walker identified him as the person whose voice was heard on the
tape making the drug sale, and there was no corroborating evidence
such as fingerprints or testimony from other persons present during
the sale. A conviction must be sustained if, taking the view most
favorable to the government, there is substantial evidence to support
it. Glasser v. United States, 315 U.S. 60, 80 (1942). Here, given that
the jury found Walker a credible witness, his testimony provided the
substantial evidence necessary to support the conviction.
6 UNITED STATES v. HOLLOMAN
Next, Holloman argues that the district court erred in sentencing
him as a career offender because his prior convictions for armed rob-
bery were part of a common scheme or plan. To be sentenced as a
career offender, a defendant must be at least eighteen, the instant
offense must be a crime of violence or a serious drug offense, and the
defendant must have two prior felony convictions for either a crime
of violence or a serious drug offense which are counted separately
under § 4A1.1(a), (b), or (c). USSG § 4B1.2(c). Sentences for prior
offenses that were not separated by an intervening arrest are consid-
ered "related cases" and counted as one sentence, see USSG
§ 4A1.2(a)(2), if they resulted from offenses that (1) occurred on the
same occasion, (2) were part of a single common scheme or plan, or
(3) were consolidated for trial or sentencing. USSG § 4A1.2, com-
ment. (n.3).
Holloman argues that the three prior armed robbery convictions set
out in paragraphs 40, 41, and 42 of the presentence report should have
been treated as related cases because they were part of a common
scheme or plan and because he thought the six-year concurrent sen-
tences he received were to be consolidated into a single six-year term.
The factors identified by this court as relevant to a determination
of whether offenses are part of a single common scheme or plan are:
[W]hether the crimes were committed within a short period
of time, in close geographic proximity, involved the same
substantive offense, were directed at a common victim, were
solved during the course of a single criminal investigation,
shared a similar modus operandi, were animated by the
same motive, and were tried and sentenced separately only
because of an accident of geography.
Breckenridge, 93 F.3d at 138. Not all these factors must be present
for there to be a common scheme or plan, nor does the presence of
a few of them require that finding. Id. Temporal and geographic prox-
imity are significant, but not determinative. Id. The same is true of a
common motive, or a single police investigation (unless it was a tar-
geted investigation). Id. (citing United States v. Fonville, 5 F.3d 781,
784-85 (4th Cir. 1993)). The fact that the defendant received concur-
rent sentences does not make separate offenses related, but the fact
UNITED STATES v. HOLLOMAN 7
that the offenses were substantively similar may be significant. Id.(citing Fonville).
In Holloman’s case, the three robberies were committed in the
same city and involved the same substantive offense, the same partici-
pants, and a similar modus operandi—the robbers entered the store
with a weapon (firearms in two robberies, a hammer in the third),
threatened the store employees and smashed the jewelry cases. Hollo-
man was charged with all three robberies after his arrest in November
1988, indicating that the crimes were solved in one investigation,
although it is not clear how the investigation proceeded.
However, the robberies had different victims and, most impor-
tantly, the first robbery was not close in time to the last two robberies.
The first robbery was committed a year before the others. The last
two robberies were committed two weeks apart. There was no evi-
dence of any common motive other than monetary gain. The district
court found that all three robberies were "crimes of opportunity," not
connected by a common scheme or plan. We agree that the 1987 rob-
bery was too distant from the last two robberies for the district court
to find that all three robberies were part of a common scheme or plan.
Thus, even if the last two robberies were viewed as connected by a
common scheme or plan, Holloman still has two prior crimes of vio-
lence that were not related. Therefore, the district court did not err in
sentencing him as a career offender.
Finally, Holloman contests the district court’s decision not to
depart under USSG § 4A1.3 because his criminal history category
was overstated, or under § 5H1.4, because he is HIV positive. The
district court’s decision not to depart is not reviewable unless its deci-
sion is based on a mistaken belief that it lacks authority to depart.
United States v. Brock, 108 F.3d 31, 33 (4th Cir. 1997). Here, the dis-
trict court noted that it had authority to depart, but would not do so.
Therefore, this issue is not properly raised on appeal.
We therefore affirm the conviction and sentence. We dismiss the
portion of the appeal that contests the district court’s decision not to
depart. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED IN PART AND DISMISSED IN PART