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


9-23-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4005




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 02-4005


                           UNITED STATES OF AMERICA

                                            v.

                                 JEFFREY HOLLAND,

                                                               Appellant


                     On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                                (D.C. Crim. No. 01-00195-2)
                     District Judge: Honorable William W. Caldwell


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

           BEFORE: BARRY, BECKER, and GREENBERG, Circuit Judges

                               (Filed: September 23, 2003)


                                        OPINION


GREENBERG, Circuit Judge.

        This matter comes on before this court on an appeal from a judgment of

conviction and sentence entered in this criminal case on October 15, 2002, following a

jury verdict convicting the appellant Jeffrey Holland (“Holland”) on three of the four
counts of the second superseding indictment in this case. In particular, the three counts

on which the jury convicted him were as follows: Count I, 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 III, intentionally and knowingly using a firearm in

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

2; and Count V, conspiracy to manufacture, distribute, and possess with 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. In addition, he was charged in Count IV with

causing the death of Jason Harrigan through the use of a firearm used during and in

relation to drug trafficking and a drug trafficking conspiracy in violation of 18 U.S.C. §

924(j) and 18 U.S.C. § 2. The jury, however, deadlocked on that count and the court later

dismissed it. The indictment included largely parallel charges against Harvey Holland,

Holland’s brother, who thereafter was a defendant at their joint trial. Harvey Holland,

however, was not charged with a violation of 18 U.S.C. § 924(c). The district court

sentenced Holland to concurrent life sentences on Counts I and V to be followed by a

consecutive term of 60 months on Count III. In addition, the court ordered that the terms

of imprisonment be followed by concurrent ten-year terms of supervised release on

Counts I and V and a concurrent three-year term of supervised release on Count III and



                                             2
fined Holland $6,000.00.

        Holland contends that the evidence was not sufficient “to prove beyond a

reasonable doubt the offense of Conspiracy to Distribute 50 grams or more of crack

cocaine.” Br. at 2. He also contends that he is entitled to a new trial on the conspiracy

and distribution counts because “the court erred when it gave an inaccurate, unbalanced

and misleading supplemental instruction in response to [a] jury question.” Id. The parties

are in agreement that we review the evidence in the light most favorable to the

government on Holland’s first contention, citing United States v. Cothran, 286 F.3d 173,

175 (3d Cir. 2002), and United States v. Rosario, 118 F.3d 160, 163 (3d Cir. 1997).

Moreover, the government, citing United States v. Dent, 149 F.3d 180, 187 (3d Cir.

1998), points out that we do not weigh the evidence or make an independent

determination as to the witnesses’ credibility and we must uphold the verdict if any

“rational” trier of fact could have found the elements of the offense established beyond a

reasonable doubt. The parties are also in agreement as to our standard of review with

respect to the supplemental jury instruction as they both state that we use an abuse of

discretion standard, citing Walden v. Georgia-Pacific Corp., 126 F.3d 506, 513 (3d Cir.

1997), and Beardshall v. Minuteman Press International, Inc., 664 F.2d 23, 28 (3d Cir.

1981). The district court had jurisdiction under 18 U.S.C. § 3231 and we have

jurisdiction under 28 U.S.C. § 1291.

        Preliminarily we want to make it clear that the government’s observation that



                                             3
Holland’s first argument, i.e., the evidence on the conspiracy count, Count V, was

insufficient cannot help him even if we accept it, has not entered into our consideration of

this case. The government predicates this assertion on the circumstance that Holland does

not challenge the sufficiency of the evidence to support his conviction on Count I. Thus,

a reversal limited to Count V would not affect the verdict on Count I or the concurrent

life sentence that the court imposed on that count. Indeed, Holland does not even make a

spill-over argument that the insufficiency of the evidence on Count V prejudiced him on

Count I. See United States v. Pelullo, 964 F.2d 193, 207 (3d Cir. 1992). Nevertheless,

we view the sufficiency of the evidence argument no differently than we would if the jury

had convicted him only on Count V. That said, we reject Holland’s sufficiency of the

evidence argument as we are satisfied that the evidence supported the conviction.

        Holland’s contention with respect to the supplemental jury instruction relates to

proceedings on June 6, 2002. While the transcript does not set forth the jury’s question

verbatim it includes the judge’s comment that: “Folks, we have the question that you

asked about the 20 dollar bag and what it weighs; is that correct? And you indicate that

you have no reference to determine weight, no direct testimony as to the specific weight

amounts, etcetera.” App. at 623. Holland does not suggest that the court’s

characterization of the jury’s question was inaccurate and neither he nor his brother

objected to the court’s characterization of it at the time. The weight was significant

because the court in its charge had explained that if the jury determined that the material



                                             4
involved was crack cocaine and a defendant was guilty of distribution or possession of it

with intent to distribute, the jury would be asked “to determine the approximate quantity

of the cocaine involved if you can do so.” Id. at 601. The court, in fact, did ask the jury

to indicate on its verdict sheet, if it found Holland guilty on Count V, whether the

quantity was 50 grams or more, 5 grams or more but less than 50 grams, or less than 5

grams. The jury found that the quantity was 50 grams or more.

         In response to the question the court referred to the testimony and then,

following a discussion with the attorneys, added to its original comments in response to

the question. Holland contends that the supplemental instruction inaccurately stated the

facts in the case, precluded the jury from considering important facts regarding the weight

involved, and misled and coerced the jury. We have reviewed the matter and have

concluded that the court’s supplemental instruction except in one respect was

unexceptionable.

         In the court’s original supplemental instruction before its discussion with the

attorneys it indicated that “[n]aturally, we are hopeful that a verdict can be reached in this

case, but we don’t want anybody to reach a verdict just for the sake of reaching a verdict.

If the case is not resolved today, it will have to be tried by another jury at a later time.”

App. at 624. Holland correctly points out that insofar as the court indicated that to avoid

the necessity for a new trial the jury would have to resolve the case “today,” the statement

was “untrue” as the jury had deliberated only on that day and the jury had not suggested



                                               5
that it was deadlocked. In the circumstances, we believe that the deliberations could have

been and indeed would have been continued to another day if the jury did not return a

verdict on the day the court gave the supplemental instruction.

         While we realize that the court did declare a mistrial on Count IV on June 6,

2002, the day it gave the supplemental charge, we doubt that it would have declared a

mistrial on the whole case if the jury had not returned a verdict on any count that day. It

is one thing to declare a mistrial on one count of a multi-count indictment but quite

another to declare a mistrial on an entire case. After all, experience teaches that when the

jury cannot return a verdict on one count it may not be necessary to retry that count when

there are convictions on other counts. Indeed, that is what happened here. On the other

hand, we think that the court would have been reluctant to declare a mistrial on the entire

case for by doing so it surely would have guaranteed that there would be another trial as

we cannot imagine that the government would have dropped this serious case after only

one mistrial.

         We, nevertheless, will not reverse by reason of this error. As we have explained,

following the court’s incorrect comment there was a sidebar discussion and after that

discussion the court made further reference to the jury regarding the evidence. Thus, as

the court apparently was responsive to the attorneys’ comments but made no reference to

the jury reaching a verdict we infer that neither defendant objected to the comment or

asked the court to clarify it. Moreover, after the court completed its supplemental



                                             6
instructions and the jury retired the court stated that “Did counsel wish to place any

objection on the record to my remarks?” App. at 625. At that time neither defendant

suggested that the court’s comments regarding the jury reaching a verdict “today” were

unfair or coercive and neither objected to them.

         In the circumstances, Holland has an enhanced burden to obtain a reversal by

reason of the court’s error as he must show plain error to be successful. After all, the

error was evident and he had an adequate opportunity to object to it but did not do so.

See United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 1776-77 (1993). In

this regard, Fed. R. Crim. P. 52(b) indicates that only plain error or defects affecting

substantial rights may be noticed. We are satisfied that the error could not have affected

Holland’s substantial rights. As we indicated above, the court told the jury during its

charge that it would be concerned with the quantity of the crack cocaine only if it

determined that the material was crack cocaine and a defendant was guilty of distribution

of it or possession of it with intent to distribute. Here the jury’s question related to weight

and thus the question implies that even before the jury asked the question it had resolved

the basic issues in the case for unless it had the weight did not matter. Moreover, as we

also have indicated, the evidence supported the conviction for a conspiracy involving 50

grams or more of crack cocaine. In the circumstances, we could not hold reasonably that

the court’s error affected Holland’s substantial rights. Indeed, we cannot conceive that if

the court had not included the word “today” in its supplemental instruction the result here



                                              7
would have been different.

         In reaching our conclusion we recognize that the coercive capacity of the court’s

comment did not depend on it being correct. Yet here we cannot believe that the court

coerced the jury for the jury, notwithstanding the court’s comment, deadlocked on Count

IV. Accordingly, even though the jury did not know that the count would be dismissed

rather than being retried if it did not reach a verdict, it nevertheless was willing to compel

the parties to go through another trial on that count. Therefore it was not coerced by the

court’s comments.

         In closing our opinion, we point out that this case demonstrates why a court

should be reluctant to reverse by reason of an error not brought to the attention of the

district court. We reiterate that following the sidebar conference after the court’s initial

response to the jury’s question the court amplified its comments to the jury, thus

demonstrating that it was open to suggestions. Consequently, we have no doubt that if

the attorneys had objected to the use of the word “today” the court would have told the

jury to disregard it. Apparently the defendants did not think at the time that the court

prejudiced them by the use of the word and neither do we now.

         For the foregoing reasons the judgment of conviction and sentence entered

October 15, 2002, will be affirmed.




                                              8
    /s/ Morton I. Greenberg
                  Circuit Judge




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