United States v. Juan Holiday ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50157
Plaintiff-Appellee,
D.C. No.
v. 3:17-cr-01370-AJB-1
JUAN MARQUIS HOLIDAY,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Submitted April 16, 2021 *
Pasadena, California
Filed May 27, 2021
Before: MILAN D. SMITH, JR., and SANDRA S.
IKUTA, Circuit Judges, and JOHN E. STEELE, **
District Judge.
Opinion by Judge Milan D. Smith, Jr.
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable John E. Steele, United States District Judge for the
Middle District of Florida, sitting by designation.
2 UNITED STATES V. HOLIDAY
SUMMARY ***
Criminal Law
The panel affirmed a defendant’s convictions and
sentence for seven instances of armed robbery and three
instances of attempted armed robbery.
The panel held that the district court erred by denying the
defendant’s motion to suppress body camera footage taken
during an unrelated police encounter at the defendant’s home
in connection with the report of child abuse in a vehicle
registered to the defendant’s home. In the footage, the
defendant was wearing shoes that matched the description of
the shoes the suspect was wearing at an ARCO gas station in
one of the robberies. The Government conceded that an
officer’s opening the front door of the home constituted a
search, but contended that the warrantless search was
constitutional pursuant to the emergency exception to the
warrant requirement. The panel held that the officers’
conduct did not fall within the scope of the emergency
exception to the warrant requirement because the officers
had no reason to believe that the child victim was in the
home at the address where the vehicle was registered. The
panel concluded, however, that the error in admitting the
body camera evidence was harmless because of the strength
of the other evidence that the defendant committed the
ARCO robbery.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. HOLIDAY 3
The panel affirmed the district court’s denial of the
defendant’s motion in limine to exclude video evidence of
his flight from police pursuant to Fed. R. Evid. 404(b). The
panel explained that the car chase video was not subject to
Rule 404(b)(1), which sets forth prohibited uses. The panel
wrote that even if the evidence would have been excluded
under Rule 404(b)(1) if the Government had used it to prove
the defendant’s character, (a) the video was admissible under
Rule 404(b)(2) to prove the defendant’s identity as the
person who committed several robberies while wearing the
same sweatshirt he wore in the video, and, in one robbery,
using the same gun that was found near where he was sitting
in the fleeing car; and (b) admission of the video was not an
abuse of discretion because it was relevant and not more
prejudicial than probative.
Affirming the district court’s denial of the defendant’s
motion to sever the offenses, the panel explained that under
its plain text, Fed. R. Crim. P. 8(a) lists the three criteria for
when joinder of multiple offenses is permitted in the
disjunctive.
The panel held that United States v. Harris, 154 F.3d
1082 (9th Cir. 1998), compels the conclusion that the
defendant’s 85-year prison sentence for his role in ten
robberies does not violate the Eighth Amendment.
The panel wrote that it is not at liberty to overrule the
three-judge panel’s decision in United States v. Dominguez,
954 F.3d 1251 (9th Cir. 2020), which, as the defendant
acknowledged, rejected the argument that attempted robbery
under the Hobbs Act is not a “crime of violence” that triggers
18 U.S.C. § 924(c) and its accompanying penalties.
4 UNITED STATES V. HOLIDAY
The panel held that there is no basis for a holding of
cumulative error requiring a new trial.
COUNSEL
Douglas C. Brown, San Diego, California, for Defendant-
Appellant.
Robert S. Brewer, Jr., United States Attorney; Daniel E.
Zipp, Chief, Appellate Section, Criminal Division; David
Chu, Assistant United States Attorney; United States
Attorney’s Office, San Diego, California; for Plaintiff-
Appellee.
OPINION
M. SMITH, Circuit Judge:
Juan Marquis Holiday was tried and convicted for seven
instances of armed robbery and three instances of attempted
armed robbery. The district court sentenced him to a
mandatory minimum term of eighty-five years’
imprisonment. Holiday appealed his conviction and
sentence. On appeal, Holiday raises three alleged trial
errors: (1) denial of his motion to suppress body camera
footage of him taken during an unrelated police encounter;
(2) denial of his motion in limine to exclude video evidence
of his flight from police; and (3) denial of his motion to sever
the offenses. In addition, Holiday argues that cumulative
errors affected the fairness of his trial. Holiday also
contends that the mandatory minimum term imposed on him
violates the Eighth Amendment’s prohibition on cruel and
unusual punishment. Finally, Holiday urges the court to
UNITED STATES V. HOLIDAY 5
overturn a prior case that held that attempted Hobbs Act
robbery is a “crime of violence.” We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In early 2017, Holiday robbed seven businesses and
attempted to rob three others. He was charged with seven
counts of obstruction of commerce by robbery, in violation
of 18 U.S.C. § 1951, three counts of attempted obstruction
of commerce by robbery, in violation of 18 U.S.C. § 1951,
and ten counts of using a firearm during a crime of violence,
in violation of 18 U.S.C. § 924(c). Each robbery or
attempted robbery was caught on surveillance footage. The
footage showed a suspect with a hooded sweatshirt cinched
to hide his face. Each incident involved the use of a firearm.
During five of them, the suspect fired the gun he was
holding. During two of the robberies, the suspect pistol-
whipped his victims.
On April 10, 2017, San Diego Police Officer Joshua
Taisor witnessed a man in a dark blue sweater get into a
parked car. That car then ran a stop sign and, when Taisor
attempted to pull the car over, its driver led the police on a
chase. The fleeing car eventually crashed, and four people
bolted from the car and fled. One of those individuals was
Holiday, who wore a blue hooded sweatshirt with black
sleeves and the initials “SD” on the front, which the
Government argued was identical to the sweatshirt the
suspect was wearing in four of the robberies. A search of the
vehicle also revealed a two-tone handgun that matched the
description of the weapon used in one of the robberies.
In a search of Holiday’s home, the FBI recovered long
dark shorts and a blue bandana that the government argued
matched what the suspect was wearing in three of the
6 UNITED STATES V. HOLIDAY
robberies. The FBI also found a black handgun with a silver
ejection port that matched the gun used in five of the
robberies. The Government introduced additional direct and
circumstantial evidence at trial to link Holiday to the
robberies, including DNA evidence matching Holiday’s
profile from the scene of one robbery. The Government also
adduced body camera footage from an unrelated police
encounter at Holiday’s home. In the footage, Holiday was
wearing blue Nike Cortez shoes with white trim, which
matched the description of the shoes the suspect was wearing
during one of the robberies.
The body camera footage was taken on February 7, 2017,
after police received a report that a man was hitting a child
in the backseat of a blue Jaguar. In a “contemporaneous
line” of actions from the report of the incident, police ran the
license plate and found it was registered to a person with the
initials M.B., at 1703 Paseo Aurora Road. When the officers
arrived at that address, one of them knocked on the front
door, tried the handle, and found it was unlocked. The
officer pushed the door open but remained standing on the
threshold. Holiday and his wife were on their way to the
door when the officer opened it; they told the officers that
their children were at school and that they did not own a blue
Jaguar. There is no indication that the officers saw a blue
Jaguar at or near Holiday’s residence. The officers took
Holiday’s name and left.
Holiday moved to suppress the bodycam footage of this
exchange on the ground that it was collected in violation of
the Fourth Amendment. The district court denied the
suppression motion based on exigent circumstances.
Holiday also moved to exclude video evidence showing the
car chase after which he was apprehended on the grounds
that it was inflammatory, more prejudicial than probative,
UNITED STATES V. HOLIDAY 7
and reflected evidence of uncharged offenses. The district
court denied the motion but gave a limiting instruction that
the jury was prohibited from considering any potential
uncharged crime when determining Holiday’s guilt for the
charged crimes.
Holiday also moved to sever five of the robberies on
somewhat unclear grounds, appearing to argue that five of
the robberies were committed by two individuals together,
and the other five were committed by one person alone. The
district court denied the motion. Next, Holiday argued that
conspiracy to commit robbery is not a crime of violence
under the Hobbs Act. The district court held that the
robberies were crimes of violence as a matter of law, noting
that Holiday was not charged with conspiracy.
The jury convicted Holiday for his role in all ten
robberies. At sentencing, the district court denied Holiday’s
motion for a downward departure from the offenses’
mandatory minimum sentences, holding that the eighty-five-
year mandatory minimum did not violate the Eighth
Amendment. Holiday appealed.
On appeal, Holiday contends that the district court
incorrectly denied his motion to suppress the body camera
footage, requests that we “change [ ] current Ninth Circuit
law” to hold that attempted Hobbs Act robbery is not a crime
of violence for purposes of 18 U.S.C. § 924(c) and also
claims that it was improper under Federal Rule of Evidence
404(b) to admit the video evidence of the car chase after
which police apprehended him. In addition, Holiday argues
that the charges against him were improperly joined in a
single indictment, that the district court should have granted
his motion for a new trial based on cumulative errors, and
that his mandatory minimum term of eighty-five years’
imprisonment violates the Eighth Amendment.
8 UNITED STATES V. HOLIDAY
ANALYSIS
A.
We first consider whether the district court properly
denied Holiday’s motion to suppress the body camera
footage.
1.
The San Diego Police Department did not obtain a
warrant to search Holiday’s home in connection with the
report of child abuse in a blue Jaguar registered to Holiday’s
address. “[S]earches and seizures inside a home without a
warrant are presumptively unreasonable,” and therefore
violate the Fourth Amendment, unless subject to an
established exception. Kentucky v. King, 563 U.S. 452, 459
(2011) (internal quotation marks omitted). The Government
concedes that opening Holiday’s front door constituted a
search, but it contends that the search was constitutional
pursuant to the emergency exception to the warrant
requirement.
Pursuant to the emergency exception, police need not
obtain a search warrant to enter a dwelling if
“(1) considering the totality of the circumstances, law
enforcement had an objectively reasonable basis for
concluding that there was an immediate need to protect
others or themselves from serious harm; and (2) the search’s
scope and manner were reasonable to meet the need.”
United States v. Snipe, 515 F.3d 947, 952 (9th Cir. 2008).
Domestic violence cases do not “create a per se exigent need
for warrantless entry.” United States v. Brooks, 367 F.3d
1128, 1136 (9th Cir. 2004). Instead, we have found the
emergency exception to the warrant requirement satisfied
where police have an objectively reasonable belief that the
UNITED STATES V. HOLIDAY 9
victim is inside the home and in danger. See, e.g., United
States v. Black, 482 F.3d 1035, 1039 (9th Cir. 2007)
(affirming application of the exigent circumstances doctrine
when the defendant “could have returned to the apartment
after [the victim’s] 911 call, but before police arrived at the
scene,” which would have allowed the defendant to “pull
[the victim] back into the apartment”); United States v.
Brooks, 367 F.3d 1128, 1135 (9th Cir. 2004).
In this case, the Government has not satisfied the second
prong of the Snipe test. The officers had no reason to believe
that the child victim was in the home at the address where
the Jaguar was registered. In fact, they had reason to believe
the child was not in the home, since the tip they received was
that the child was in a blue Jaguar. The Government
appears to adopt the district court’s finding that “there ‘was
no indication that the [incident] in the Jaguar had ended’”
when officers arrived at the residence. If the incident in the
Jaguar had not ended, it was clearly unreasonable for the
officers to have believed that the victim of the reported crime
was inside Holiday’s residence. In order to show that “the
search’s scope and manner were reasonable to meet the
need,” as the Snipe test requires, 515 F.3d at 952, the
Government must provide a logical and sound link between
the information police have and the search they conduct.
The Government has failed to do so here.
The Government cites several cases for the proposition
that “the need to ensure a child’s welfare is an emergency
that justifies a limited, warrantless search.” But in each case
cited, the police had information that either suggested or
confirmed that the child in need of assistance was inside the
dwelling that was the subject of the warrantless search (or
the child was with police and needed to be reunited with
parents inside the dwelling). See, e.g., United States v.
10 UNITED STATES V. HOLIDAY
Bradley, 321 F.3d 1212, 1214–15 (9th Cir. 2003)
(warrantless entry was constitutional where nine-year-old’s
mother told police that the child was home with no parent or
guardian in the middle of the night); United States v. Brooks,
367 F.3d 1128, 1136 (9th Cir. 2004) (warrantless entry into
a hotel room was permissible where a 911 call reported
abuse taking place inside the room); United States v. Taylor,
624 F.3d 626, 632 (4th Cir. 2010) (warrantless entry was
constitutional to reunite a lost four-year-old with the child’s
parents).
The opposite is true here: rather than information that the
child was inside the residence at 1703 Paseo Aurora, the
police had information suggesting or confirming that the
child in need of assistance was in a blue Jaguar. But instead
of locating the blue Jaguar, the police went to the location
where they knew or should have known the child was not
present. The officers’ conduct does not fall within the scope
of the emergency exception to the warrant requirement. 1
2.
According to the Federal Rules of Criminal Procedure,
“[a]ny error . . . that does not affect substantial rights must
be disregarded” on appeal. Fed. R. Crim. P. 52(a). Thus,
when evidence in a case like this one is introduced that
should not have been, the court conducts a harmless error
analysis. United States v. Brobst, 558 F.3d 982, 997 (9th
Cir. 2009). “[B]efore a federal constitutional error can be
held harmless, the court must be able to declare a belief that
it was harmless beyond a reasonable doubt,” in that it “did
1
Nor was the warrantless search of Holiday’s home justified under
the community caretaking exception. See Caniglia v. Strom, 593 U.S.
______ (2021).
UNITED STATES V. HOLIDAY 11
not contribute to the verdict obtained.” Chapman v.
California, 386 U.S. 18, 24 (1967). The Government bears
the burden of proving that an error was harmless. Lustig,
830 F.3d at 1086.
The Government used the body camera footage obtained
from the illegal search to show that Holiday owned blue
Nike Cortez sneakers with white trim—the shoes that the
suspect was wearing in the January 5 robbery of the ARCO
gas station. The footage was not used for any other purpose.
Thus, at most, the footage could only have affected the
verdict on the two counts associated with the ARCO
robbery. However, there was other probative evidence
linking Holiday to that particular robbery. Specifically,
Holiday’s DNA was found on a black plastic bag outside the
ARCO gas station soon after the surveillance footage
showed the clerk handing the robber an identical black
plastic bag. Holiday argues that the Government’s theory at
trial rested on a common pattern among all the robberies.
This is true, but it is irrelevant where the improperly
admitted body camera footage merely bolstered already
conclusive evidence that Holiday committed a particular
count charged in the indictment. See United States v.
Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996). Because of
the strength of the other evidence that Holiday committed
the ARCO robbery, we hold that the error in admitting the
body camera evidence was harmless.
B.
Holiday contends that the district court should have
granted his motion in limine to exclude the video evidence
of Holiday’s flight from police on April 10, 2017 pursuant
to Federal Rule of Evidence 404(b). Rule 404(b) states:
12 UNITED STATES V. HOLIDAY
(1) Prohibited Uses. Evidence of any other
crime, wrong, or act is not admissible to
prove a person’s character in order to show
that on a particular occasion the person acted
in accordance with the character.
(2) Permitted Uses. This evidence may be
admissible for another purpose, such as
proving motive, opportunity, intent,
preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.
First, Holiday provides no support for his argument that
the car chase was within the scope of Rule 404(b). The
Government did not use the video to argue that Holiday was
the type of person who flees from police, or that he fled from
police in the charged crimes. Instead, the Government used
the video of the car chase “to explain how the Government
obtained the two[-]tone handgun . . . (and to corroborate
testimony that Holiday was sitting where the gun was
found), and to show that Holiday was wearing the same blue
hooded sweatshirt with black sleeves that was worn at the
last four robberies.” The car chase video therefore was not
subject to Rule 404(b)(1).
Even if the video would have been excluded under Rule
404(b)(1) if the Government had used it to prove Holiday’s
character, it was admissible under Rule 404(b)(2) for another
purpose. Under our case law, “[w]hen the [G]overnment
offers evidence of prior crimes or bad acts as part of its case
in chief, ‘it has the burden of first establishing relevance of
the evidence to prove a fact within one of the exceptions to
the general exclusionary rule of Rule 404(b)[.]’” United
States v. Sims, 617 F.2d 1371, 1378 (9th Cir. 1980) (quoting
United States v. Hernandez-Miranda, 601 F.2d 1104, 1108
UNITED STATES V. HOLIDAY 13
(9th Cir. 1979)). Second, the Government must show “that
the proper relevant evidence is more probative than it is
prejudicial to the defendant.” Id. (quoting Hernandez-
Miranda, 601 F.2d at 1108). The required probative versus
prejudicial balancing is reviewed for abuse of discretion. Id.The Government used the video to prove Holiday’s
identity as the person who committed several robberies
while wearing the same sweatshirt he wore in the video, and,
in one robbery, using the same gun that was found near
where he was sitting in the fleeing car. This is permissible
under Rule 404(b)(2). With respect to the probative versus
prejudicial balancing test, the district court did not abuse its
discretion. Although the video showed “a vehicle police
chase, SWAT officers in full gear, dogs, air surveillance[,]
and sirens,” none of these features is particularly prejudicial,
as all are ordinary markers of a police chase. Officer Taisor
testified that the car in which Holiday was riding fled from
him when he attempted to conduct a traffic stop, and Holiday
did not object to this testimony. Therefore, even assuming
arguendo that the video was within the scope of Rule
404(b)(1) if used to prove Holiday’s character, its admission
was not an abuse of discretion because it was relevant and
not more prejudicial than probative.
C.
Federal Rule of Criminal Procedure 8(a) permits joinder
of multiple offenses in a single indictment when the offenses
“are of the same or similar character, or are based on the
same act or transaction, or are connected with or constitute
parts of a common scheme or plan.” Holiday admits that
“[t]he counts are of the same or similar character,” but seems
to argue that joinder is only proper where the counts satisfy
all three criteria in Rule 8(a).
14 UNITED STATES V. HOLIDAY
Holiday’s argument is belied by the plain text of the rule,
which uses the disjunctive “or” to signal that joinder is
proper where just one criterion is satisfied. The district court
did not err by denying Holiday’s severance motion.
D.
The Eighth Amendment prohibits cruel and unusual
punishments. “[T]he ‘Eighth Amendment does not require
strict proportionality between crime and sentence. Rather, it
forbids only extreme sentences that are “grossly
disproportionate” to the crime.’” United States v. Harris,
154 F.3d 1082, 1084 (9th Cir. 1998) (quoting Harmelin v.
Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J.,
concurring in part and concurring in the judgment)). The
threshold question is whether a “comparison of the crime
committed and the sentence imposed leads to an inference of
gross disproportionality.” Id. (quoting Harmelin, 501 U.S.
at 1005 (Kennedy, J., concurring in part and concurring in
the judgment)).
In Harris, the defendant was convicted of five counts of
interference with interstate commerce by robbery in
violation of 18 U.S.C. § 1951(a), and five counts of use of a
firearm in a crime of violence in violation of 18 U.S.C.
§ 924(c). Id. at 1083. The district court sentenced Harris to
a term of ninety-five years’ imprisonment, pursuant to the
mandatory minimums set forth in 18 U.S.C. § 924(c). Id.We held that sentence did not violate the Eighth Amendment
for three reasons: (1) “[a]rmed robberies are extremely
dangerous crimes”; (2) “[t]he robberies at issue in [that] case
were undeniably violent”; and (3) Congress mandated
Harris’s sentence in an otherwise valid statute, and “[a]
sentence which is within the limits set by a valid statute may
not be overturned on appeal as cruel and unusual.” Id.
at 1084 (quoting United States v. Klein, 860 F.2d 1489, 1495
UNITED STATES V. HOLIDAY 15
(9th Cir. 1988), overruled on other grounds by United States
v. Nordby, 225 F.3d 1053 (9th Cir. 2000)).
In Harris, the defendant was convicted for his role in five
robberies and sentenced to ninety-five years’ imprisonment;
here, Holiday was convicted for his role in ten robberies and
sentenced to eighty-five years’ imprisonment. Otherwise,
the cases do not differ meaningfully. Harris therefore
compels the conclusion that Holiday’s sentence does not
violate the Eighth Amendment. See Miller v. Gammie,
335 F.3d 889, 893 (9th Cir. 2003).
E.
Holiday argues that attempted robbery under the Hobbs
Act is not a “crime of violence” that triggers 18 U.S.C.
§ 924(c) and its accompanying penalties. However, citing
United States v. Dominguez, 954 F.3d 1251 (9th Cir. 2020),
Holiday acknowledges that a ruling in his favor would be
contrary to our court’s precedent. Because we are not at
liberty to overrule the opinion of a prior three-judge panel
absent intervening and clearly irreconcilable Supreme Court
authority, we affirm the district court on this ground. See
Miller, 335 F.3d at 893.
F.
Finally, Holiday argues that the district court should
have granted his motion for a new trial based on cumulative
error. “[E]ven if no single error were prejudicial, where
there are several substantial errors, ‘their cumulative effect
may nevertheless be so prejudicial as to require reversal.’”
Killian v. Poole, 282 F.3d 1204, 1211 (9th Cir. 2002)
(quoting United States v. de Cruz, 82 F.3d 856, 868 (9th Cir.
1996)). However, “[o]ne error is not cumulative error.”
United States v. Sager, 227 F.3d 1138, 1149 (9th Cir. 2000).
16 UNITED STATES V. HOLIDAY
Because we find only that admission of the body camera
footage was erroneous, there is no basis for a holding of
cumulative error requiring a new trial.
CONCLUSION
The police violated the Fourth Amendment when they
opened the door to Holiday’s residence without a warrant on
February 7, 2017, and the fruit of that search should not have
been introduced at trial. However, given the strength of the
other evidence that Holiday committed the ARCO robbery,
the district court’s error in admitting the body camera
evidence was harmless. We reject the remainder of
Holiday’s challenges to his conviction and sentence as
meritless.
AFFIRMED.