United States v. Holloway

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-1652
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVE WAYNE HOLLOWAY and
EDWIN L. HINES,
Defendants-Appellants.
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Appeals from the United States District Court for the
Northern District of Texas
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( August 26, 1993 )
Before JOHNSON, JOLLY, and JONES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Steve Wayne Holloway and Edwin L. Hines were convicted for
committing a series of armed robberies. Hines appeals only his
sentence. Holloway appeals both his conviction and his sentence.
We conclude that the district court did not err in sentencing Hines
and therefore affirm his sentence. We further conclude, however,
that the district court committed reversible error in denying
Holloway's motion for severance of offenses--the robberies on the
one hand and, on the other, the possession of a weapon two months
after the robberies. We therefore reverse Holloway's convictions
and remand for a new trial on all counts.
I
Between October 30, 1991 and December 9, 1991, five robberies
were committed at food stores in the same area of Fort Worth,
Texas. The first robbery involved three robbers. The last four
involved only two robbers. During each robbery, the robbers
ordered the store employees and others inside the store to lie down
on the floor; they then took cash and cartons of cigarettes from
the stores.
Almost two months after the last robbery occurred, officers
arrested Holloway and Hines based on identifications made by
victims of the robberies. When Holloway was arrested, officers
found a firearm in his possession. The firearm was a .25 Raven, a
small weapon that fits in one's back pocket.
On February 26, 1992, Holloway and Hines were indicted on
charges of (1) conspiracy to interfere with commerce by robbery in
violation of 18 U.S.C. § 1951; (2) aiding and abetting and
interfering with commerce by robbery in violation of 18 U.S.C. §
1951; and (3) aiding and abetting and knowingly carrying and using
a firearm during and in relation to the commission of a crime of
violence in violation of 18 U.S.C. § 924(c) ("the robbery
charges"). In addition, Holloway was indicted on an additional
count as a felon who knowingly and unlawfully possessed a firearm
in violation of 18 U.S.C. § 922(g)(1) ("the weapons charge").
Holloway moved for severance of the weapons charge, arguing
that pursuant to Rule 14 of the Federal Rules of Criminal Procedure
the joinder of this offense with his robbery offenses would
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prejudice him at trial. The district court, however, denied
Holloway's motion for severance and thus Holloway proceeded to
trial on the robbery charges as well as the weapons charge. After
the government had presented its witnesses regarding the robbery
charges, Holloway stipulated that he was a convicted felon and pled
guilty to the weapons charge, a tactical move to prevent the
government from presenting evidence of his previous criminal
record, which was relevant only for that charge. The remaining
counts therefore involved only the robberies. Holloway then
testified in his own defense that he had not committed any of the
robberies. During cross-examination, the government offered
evidence of the weapons conviction to which Holloway had just pled
guilty. The district court permitted the government to explore the
conviction, stating that it shed light upon Holloway's "nature."
The district court later stated--without reasons--that the
conviction had "some relevance" under Rule 404(b) of the Federal
Rules of Evidence. The jury convicted Holloway on five counts, but
acquitted him on two. Hines, however, was convicted on all counts.
Although the government had not adduced evidence at trial
connecting Holloway to the robbery charges for which he was
acquitted, at the sentencing hearing the district court allowed the
government to present evidence of Hines's unsworn statements, given
to police soon after his arrest, that Holloway had participated in
that robbery. Under cross-examination, however, Hines testified
that this assertion was not true; he had just told the police what
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they wanted to hear. Hines also testified that he had made the
statement when he was suffering from heroin withdrawal and that he
actually did not know whether Holloway had been involved in the
robbery.
No other evidence connected Holloway to the robbery of which
he was acquitted; the district court found, however, that Holloway
had been involved in the robbery and considered it for sentencing
purposes. Because of this factor, almost eleven years were added
to Holloway's sentence. Furthermore, in sentencing Holloway and
Hines pursuant to their convictions for violating 18 U.S.C. §
924(c), the district court enhanced their sentences based on a
second conviction obtained in the same trial. Both Hines and
Holloway appeal.
II
On appeal, Hines raises only one issue before this court,
which is also one of the issues Holloway raises: Whether the
district court erred in applying 18 U.S.C. § 924(c) in sentencing
them.1 In United States v. Deal, 954 F.2d 262 (5th Cir. 1992), we
held that a "second or subsequent conviction" within the meaning of
§ 924(c) can result from the same indictment as the first
conviction. Our opinion was recently affirmed in Deal v. United
States, ___ U.S. ___, 113 S. Ct. 1993, 124 L. Ed. 2d 44 (1993). The
1
Under 18 U.S.C. § 924(c), in the case of a second or
subsequent conviction under this section a defendant "shall be
sentenced to imprisonment for twenty years."
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district court therefore did not err in enhancing Hines's and
Holloway's sentences based on two convictions under § 924(c)
obtained pursuant to one indictment. Accordingly, Hines's sentence
is affirmed. We now turn to address the issues raised by Holloway.
III
A
Holloway argues that the district court erred in failing to
sever Count 12, the weapons charge, which charged Holloway, as a
felon, with possession of the weapon found on him at the time of
his arrest--some two months after the robberies had occurred. Rule
8(a) of the Federal Rules of Criminal Procedure provides the
following:
Two or more offenses may be charged in the same
indictment or information in a separate count for each
offense if the offenses charged, whether felonies or
misdemeanors or both, are of the same or similar
character or are based on the same act or transaction or
on two or more acts or transactions connected together or
constituting parts of a common scheme or plan.
Rule 14 provides that if it appears that a defendant is prejudiced
by a joinder of offenses, the court may order a separate trial of
the counts. We review the district court's denial of a motion for
severance for abuse of discretion. United States v. Stouffer, 986
F.2d 916, 924 (5th Cir. 1993). Furthermore, the district court's
decision will not be reversed unless there is clear prejudice to
the defendant. United States v. MacIntosh, 655 F.2d 80, 84 (5th
cir. 1981), cert. denied, 455 U.S. 948 (1982). In reviewing the
district court's denial of a motion to sever, "the preliminary
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inquiry is whether, as a matter of law, initial joinder of the
counts was proper" under Rule 8(a). United States v. Forrest, 623
F.2d 1107, 1114 (5th Cir.), cert. denied, 449 U.S. 924 (1980).
B
Holloway argues that the mere possession of a weapon when one
is arrested, which is unrelated to the crime for which he is
arrested, is not a charge that is of "the same or similar
character" as the commission of the underlying offense.
Furthermore, Holloway argues that the government's allegation that
he possessed a weapon nearly two months after the last alleged
robbery occurred is not "based on the same act or transaction" as
any of the robberies; nor can it be said to constitute part of "a
common scheme or plan" connected to the earlier completed
robberies.
Holloway points out that on the face of the indictment there
is no indication that a connection exists between his possession of
the weapon and the alleged robbery conspiracy. Furthermore, there
is no allegation that he had planned to use the weapon in a
robbery, had used the weapon in a robbery, or that the weapon was
in any way connected to the charged robberies or to any robbery.
Indeed, Holloway asserts that it is an unchallenged fact that the
weapons charge in Count 12 was not remotely related to any of the
charged robberies.
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C
The government first attempts to counter Holloway's argument
by noting that Rule 8(a) is broadly construed in favor of initial
joinder. It is the government's position that all counts of the
indictment were properly joined under Rule 8(a) and, furthermore,
that there was no prejudice that would warrant a severance under
Rule 14. The government also argues that Holloway has failed to
preserve this alleged error for appeal purposes: First, Holloway's
pretrial motion for severance of counts, which was overruled by the
district court, referred only to Rule 14 but did not allege
misjoinder under Rule 8(a). Second, Holloway did not renew his
motion for severance at the close of the government's case and at
the conclusion of all of the trial testimony, and consequently he
has waived his right to appeal any alleged error.
D
After reviewing the arguments of Holloway and the government,
we conclude that the district court abused its discretion by not
severing the weapons charge.2 Plainly speaking, we can see no
basis for the United States Attorney to have included this weapons
2
We quickly dispose of the government's arguments that
Holloway has not preserved this issue for appeal. First, in
reviewing a Rule 14 motion to sever, the district court must first
determine whether the claims were improperly joined under Rule
8(a). United States v. Davis, 752 F.2d 963, 971 (5th Cir. 1985).
The fact that Holloway's motion to sever did not specifically refer
to Rule 8(a) is of no advantage to the government. Second, a
defendant is not required to renew a severance objection at the
close of the evidence to preserve the error. United States v.
Stouffer, 986 F.2d 916, 924 n.7 (5th Cir. 1993).
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charge in the indictment in the first place unless he was seeking
to get before the jury evidence that likely would be otherwise
inadmissible, i.e., that Holloway was a convicted felon and that he
had a weapon on his person when arrested. Rule 8(a) specifically
states that offenses may be charged in the same indictment when
they (1) are of the same or similar character or (2) are based on
the same act or transaction or (3) are connected together or
constitute parts of a common scheme or plan. Even the government
does not contend that the weapon found in Holloway's possession
when he was arrested was the weapon used in the robberies.
Furthermore, Holloway's arrest took place almost two months after
the most recent robbery. Thus, we can see no basis for the
conclusion that this count of Holloway's indictment was the same as
the robbery counts, or that it was based on the robberies, or that
it was part of a common scheme or plan involving the charged
robberies.
Apparently recognizing this clear failure of a connection
between the charges, the government devotes its attention to
arguing that Holloway was not prejudiced at trial by the
misjoinder. We disagree.
To demonstrate that the district court abused its discretion,
Holloway bears the burden of showing specific and compelling
prejudice that resulted in an unfair trial. United States v.
Chagra, 754 F.2d 1186, 1188 (5th Cir.), cert. denied, 474 U.S. 922
(1985).
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We first note that evidence of a prior conviction has long
been the object of careful scrutiny and use at trial because of the
inherent danger that a jury may convict a defendant because he is
a "bad person" instead of because the evidence of the crime with
which he is charged proves him guilty. United States v.
Singleterry, 646 F.2d 1014, 1018 (5th Cir. 1981). After the
district court denied Holloway's severance motion, Holloway
proceeded to trial under his original indictment, which included
the charge that he was a convicted felon in possession of a weapon.
From the outset of the trial -- because of the inclusion of the
weapons charge -- the jury was repeatedly informed that Holloway
was a convicted felon. During voir dire, the district court
explained to the potential jurors the charges against Holloway;
during the course of these explanations, the fact that Holloway was
a convicted felon was twice mentioned to the jury by the district
court. After the jury was selected, the indictment was read; Count
12 of the indictment again included the fact that Holloway was a
convicted felon. During the government's opening statements, the
jury was once again informed that Holloway was a convicted felon
who possessed a weapon when he was arrested for the robberies.
Even during Holloway's own opening statements, his attorney was
forced to refer to the fact that Holloway was a convicted felon
before arguing that the weapon found on Holloway when he was
arrested had nothing to do with the robberies. Thus, before the
jury ever received the first bit of evidence connecting Holloway to
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the crimes with which he was charged, it had heard no less than
four times -- from the judge, from the prosecutor, and even from
Holloway's own attorney -- that he was a convicted felon, something
that never would have occurred if the weapons charge had been
severed.
The government counters by arguing that evidence of Holloway's
previous conviction would have been admitted pursuant to Federal
Rule of Evidence 609 even if the weapons charge had been severed;3
therefore, Holloway could not have been prejudiced. The
government's argument is premised on the fact that Holloway
testified at trial. If Holloway had been on trial only for the
robbery charges, we cannot accept as a foregone conclusion that he
would have chosen to testify; instead, Holloway could have elected
to rely on weaknesses of witness identifications in the
government's case and on vigorous cross-examination of the
government's witnesses, as there was no physical evidence linking
Holloway to the robberies. Since Rule 609(a) permits the use of a
prior conviction for the impeachment of a defendant's testimony, by
opting not to testify Holloway could have precluded the government
from introducing the evidence that he was a convicted felon who had
a weapon on his person when arrested. Even assuming, however, that
Holloway would have testified in either event, had the weapons
3
Federal Rule of Evidence 609(a) provides that evidence that
the accused has been convicted of a crime may be admitted for the
purpose of attacking the credibility of the accused.
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count been severed, the fact that Holloway was a felon would not
have been repeated and repeated to the jury, nor is it likely that
his possession of the gun would have been admissible.
We thus conclude that this remote weapons charge should never
have been joined with the other counts of Holloway's indictment in
the first place. Second, by failing to sever the weapons charge
with the robbery charges, the jury emphatically was told that
Holloway was a bad and dangerous person "by his very nature", and
that a felon who carried a gun was just the sort of character who
was most likely to have committed the robberies charged in the
indictment. In short, Holloway was unjustifiably tried, at least
in part, on the basis of who he was, and not on the basis of the
material evidence presented against him.
Finally, we cannot say that the evidence against Holloway was
so overwhelming that the jury was not unfairly influenced by the
fact that they were judging a felon and by the fact that he was the
type of person who would carry a weapon. We therefore conclude
that the inclusion of this count did indeed prejudice Holloway and
resulted in an unfair trial.4 In view of the prejudice to
Holloway, the district court's denial of Holloway's motion for
4
We note that if the weapons charge had been related to the
robbery charges, initial joinder would have been proper and our
conclusion in this case would have been different, as this court
has previously held on several occasions that a district court may
properly refuse severance even though proof of one of the counts
requires proof of a prior felony conviction. See Breeland v.
Blackburn, 786 F.2d 1239, 1241 (5th Cir. 1986).
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severance constitutes an abuse of discretion. Accordingly, we
reverse Holloway's convictions and remand for a new trial.
IV
In conclusion, we AFFIRM the district court's sentencing of
Hines. Because we reverse Holloway's conviction based on the
misjoinder of the weapons offense, we need not reach his other
arguments raised on appeal. We only hold that the district court
should have granted Holloway's motion for severance, and its
failure to do so was an abuse of discretion. We therefore REVERSE
Holloway's convictions and REMAND for a new trial on all counts.
AFFIRMED in part;
REVERSED and REMANDED in part.
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