                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-30-2003

USA v. Holland
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4481




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                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 02-4481


                           UNITED STATES OF AMERICA

                                           v.

                                HARVEY HOLLAND,

                                                             Appellant


                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Crim. No. 01-00195-06)
                    District Judge: Honorable William W. Caldwell


                      Submitted United Third Circuit LAR 34.1(a)
                                 September 9, 2003

           BEFORE: BARRY, BECKER, and GREENBERG, Circuit Judges

                         (Opinion Filed: September 30, 2003)


                                       OPINION


GREENBERG, Circuit Judge.

        This matter comes on before this court on an appeal by Harvey Holland

(“Holland”) from a judgment of conviction and sentence entered in this criminal case on

December 13, 2002. Holland was convicted on two counts of a five-count second
superseding indictment in which he was charged in three counts: Count II, for

intentionally and knowingly manufacturing, distributing, and possessing with the intent to

manufacture and distribute 50 grams or more of cocaine base, also known as “crack”

cocaine, and aiding, abetting, counseling, commanding, inducing, and procuring the same

in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Count IV, causing the death of

Jason Harrigan through the use of a firearm during and in relation to a drug trafficking

crime and a drug trafficking conspiracy in violation of 18 U.S.C. § 924(j) and 18 U.S.C. §

2; and Count V, conspiracy to manufacture, distribute, and possess with the intent to

manufacture and distribute 50 grams or more of cocaine base, also known as “crack”

cocaine, in violation of 21 U.S.C. § 846. Significantly, Shawn Anderson, called Sean

Anderson in the indictment, and Shiranda Posey, though not charged as defendants, were

named as co-conspirators in Count V and Anderson was named as a co-conspirator in

Count IV. Holland’s brother, Jeffrey Holland, also was named as a defendant in the

indictment and was a defendant with Holland at a joint trial.

        Both defendants were convicted on all counts in which they were named except

for Count IV relating to the death of Jason Harrigan. The jury deadlocked on that count

as to both defendants and thus the court declared a mistrial on it. On the government’s

motion the court later dismissed Count IV without prejudice. The court sentenced

Holland to concurrent terms of life imprisonment on the two counts on which he was

convicted to be followed by concurrent five-year terms of supervised release and fined



                                             2
him $4,000. These custodial terms were to be served consecutively to sentences imposed

by the Dauphin County Court.

         On this appeal Holland contends (1) the evidence of conspiracy was legally

insufficient to sustain his conviction for conspiracy because it did not show that he had a

unity of purpose with Jeffrey Holland but merely happened to be with him at various

times; (2) the court abused its discretion in denying his motion to sever the trials of the

two defendants; (3) the court erred in admitting into evidence pursuant to Fed. R. Evid.

801(d)(2)(E) two statements made by Shawn Anderson that he regretted being involved in

Harrigan’s homicide as there was no foundation that he made the statements during the

course or in furtherance of the conspiracy; (4) the court abused its discretion in admitting

evidence of a trip Holland allegedly made to New York with Jeffrey Holland where the

trip occurred outside of the period of the conspiracy by more than 18 months and there

was no connection between the trip and other evidence of a conspiracy; and (5) the

prosecution did not present evidence of the quantity of crack cocaine, thereby failing to

establish an element of the crime as required by Apprendi v. New Jersey, 530 U.S. 466,

120 S.Ct. 2348 (2000). The district court had jurisdiction under 18 U.S.C. § 3231 and we

have jurisdiction under 28 U.S.C. § 1291.

         We deal with Holland’s points in the order we have set them forth. We consider

whether the evidence was sufficient to support the conspiracy conviction in the light most

favorable to the government as the verdict winner and thus do not weigh the evidence



                                              3
ourselves beyond determining its sufficiency to support the conviction. Furthermore, we

do not make an independent determination of the witnesses’ credibility. See United

States v. Cothran, 286 F.3d 173, 175 (3d Cir. 2002); United States v. Dent, 149 F.3d 180,

187 (3d Cir. 1998); United States v. Rosario, 118 F.3d 160, 163 (3d Cir. 1997). In his

sufficiency of the evidence contention Holland understandably relies heavily on our

recent opinion in United States v. Pressler, 256 F.3d 144 (3d Cir. 2001). But in Pressler

the government’s problem was that notwithstanding evidence that the appellant had

distributed “a sizeable amount of heroin,” id. at 150, the government “never demonstrated

the existence of an agreement between [the appellant] and at least one other person.” Id.

at 157. In contrast, here the government presented evidence that, if accepted, as

apparently it was, did establish the conspiracy.

         We review the district court’s refusal to sever the trials of the two defendants on

an abuse of discretion basis. See United States v. Hart, 273 F.3d 363, 369 (3d Cir. 2001).

Furthermore, to obtain relief Holland must demonstrate that he suffered prejudice because

of the court’s refusal to sever the defendants’ cases. See United States v. Sandini, 888

F.2d 300, 305 (3d Cir. 1989). However, as Holland acknowledges, the Supreme Court

has indicated that “[t]here is a preference in the federal system for joint trials of

defendants who are indicted together.” Zafiro v. United States, 506 U.S. 534, 537, 113

S.Ct. 933, 937 (1993). Thus, his burden on the severance issue is not light and, in fact, he

cannot meet it. In this case the various counts of the indictment referred to related



                                               4
matters that were a part of the same acts or transactions or constituted parts of a common

scheme or plan. Indeed, it seems to us that this case is precisely the type in which a joint

trial is appropriate. Finally on the severance issue we note that the jury did not reach a

verdict on the very serious charges on Count IV, an indication that it carefully weighed

the evidence relating to each defendant and charge. See Sandini, 888 F.2d at 307. In the

circumstances, we will not reverse because the court denied Holland’s motion to sever.

         Holland’s most substantial contention is that the court erred in admitting Shawn

Anderson’s statements into evidence. By the time of the trial Anderson, who was listed

as a co-conspirator in Counts IV and V of the indictment, had been murdered. The

government called Shiranda Posey, who also was listed as a co-conspirator in Count V, as

a witness and asked her about a conversation she had with Anderson. Holland objected to

the conversation being recounted as he regarded it, quite correctly, as hearsay. The

government responded that it was “a statement of admission of a party that is involved in

the killing” and inasmuch as Anderson was a co-conspirator “it would come in in that

manner.” App. at 253. While the government did not refer specifically to any rule of

evidence to support its contention, obviously its argument relied on Fed. R. Evid.

801(d)(2)(E) which provides that “a statement by a coconspirator of a party during the

course and in furtherance of the conspiracy” is not hearsay. The court allowed Posey to

testify on that basis.

         Referring to the death of Jason Harrigan, which was the event charged in Count



                                              5
IV of the indictment on which the jury deadlocked, Posey recited that Anderson’s

statement to her was as follows: “He was just like I fucked up. He [Anderson] was

saying that Mr. Harrigan would still be alive if he hadn’t tried to kill his uncle.” Id. at

254. Holland was Harrigan’s uncle. Plainly this statement did not satisfy Rule

801(d)(2)(E) and should not have been admitted on that basis and inasmuch the

government does not contend otherwise we have no need to explain the basis for our

conclusion on this point.

         Adrienne Stewart later also testified as to a statement by Anderson. Stewart saw

Anderson driving his car and flagged him down as she had just gotten out of prison and

wanted to buy some crack. Stewart then got into Anderson’s car and they went to

Stewart’s mother’s house. Referring to Harrigan’s shooting she said that Anderson said

“that he was shot all around. He [Anderson] said he didn’t want to shoot. He didn’t want

Jeff – he didn’t want him to think that he wasn’t trying to participate in the act so he was

just shooting all around.” Id. at 336-37. She also said that Anderson was upset.

         Prior to Stewart testifying as to what Anderson had said, when the prosecutor

asked if Stewart ever had a conversation with Anderson concerning the murder of

Harrigan both defendants objected. Id. at 335. The court then said that the prosecutor

“previously indicated this is a statement made in the course of a conspiracy.” Id. The

prosecutor then said “also it is an admission of a participant – to being a participant in a

murder.” Id. Thus, without citing the rule the prosecutor relied on the Fed. R. Evid.



                                               6
804(b)(3) statement against interest exception to the hearsay rule. The court then said:

“On that basis, I will admit it and grant an exception to both defendants.” Id. It thus

appears that the court changed the basis of admissibility of Anderson’s statements, though

it is possible that its ruling allowing Stewart to recount Anderson’s statement to her was

predicated both on Rule 801(d)(2)(E) and Rule 804(b)(3). In any event, as we have

indicated, the government acknowledges that it was not admissible under the former rule

but contends that it was admissible under the latter.

         Holland contends, however, that Williamson v. United States, 512 U.S. 594, 114

S.Ct. 2431 (1994), precluded the admission of the statements under Rule 804(b)(3), as the

statements were partially exculpatory, indeed more exculpatory than inculpatory. We

believe that there is merit to this contention, at least with respect to Stewart’s statement.

Williamson makes clear that exculpatory portions of statements otherwise inculpatory as

to the declarant are inadmissible. As the Court explained: “In our view, the most faithful

reading of Rule 804(b)(3) is that it does not allow admission of non-self-inculpatory

statements, even if they are made within a broader narrative that is generally self-

inculpatory.” Id. at 600-01, 114 S.Ct. at 2435. Applying that principle here we conclude

that Anderson’s statement to Stewart principally explained how he was not involved in

Harrigan’s murder even though it places him at the scene of the crime with a weapon that

he was firing. We reach this conclusion as he claimed to be firing in a haphazard way so

as to create an illusion of his participation in Harrigan’s murder though in reality he was



                                               7
not. Nevertheless, we are satisfied that in the light of all the evidence against Holland

that these fleeting statements as recounted by Posey and Stewart could not possibly have

affected the outcome of the case no matter how demanding a standard is applied in

making a harmless error analysis and thus we will not reverse by reason of them. See

United States v. Cross, 308 F.3d 308, 326 (3d Cir. 2002).

        We have considered Holland’s final two points relating to the New York trip and

the application of Apprendi and conclude that they are not meritorious and reject them

without discussion except to point out that we have no doubt that the evidence permitted

the jury to conclude that Holland was responsible for 50 or more grams of crack cocaine.

See Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180 (1946).

        The judgment of conviction and sentence entered December 13, 2002, will be

affirmed.




                                                 /s/ Morton I. Greenberg
                                                                Circuit Judge




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