U.S. v. Holliman, 01-2546.

• Citation: 291 F.3d 498
• Decision Date: 29 May 2002
• Docket Number: No. 01-2546.,01-2546.
• Parties: UNITED STATES of America, Appellee, v. Walter HOLLIMAN, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

291 F.3d 498

UNITED STATES of America, Appellee, v. Walter HOLLIMAN, Appellant.

No. 01-2546.

United States Court of Appeals, Eighth Circuit.

Submitted: March 13, 2002.

Filed: May 29, 2002.

Rehearing and Rehearing En Banc Denied: July 2, 2002.

Paul D. Groce, argued, Little Rock, AR, for appellant.

John E. Bush, argued, Asst. U.S. Atty., Little Rock, AR, for appellee.

Before MORRIS SHEPPARD ARNOLD, HEANEY, and RILEY, Circuit Judges.

RILEY, Circuit Judge.

Walter Holliman (Holliman) was convicted by a jury of aiding and abetting and conspiracy to transport stolen vehicles in interstate commerce in violation of 18 U.S.C. § 2312. The district court¹ sentenced Holliman to forty-six months in the custody of the Bureau of Prisons, three years of supervised release, and $51,165 in restitution payments. Holliman appeals the district court's admission of evidence, refusal to grant a mistrial, and calculation of the sentence. We affirm.

I. BACKGROUND

On January 5, 2000, following up on a tip that stolen four-wheel vehicle parts were located at Holliman's residence, police officers went to Holliman's home and asked Holliman's wife if they could search for the missing vehicle parts. Holliman's wife consented to a search of the outside area. While looking outside of the buildings for the stolen parts, the officers saw in plain view obvious evidence of a methamphetamine lab. Upon the officers' further request, Holliman's wife refused to give consent to search the inside of the buildings. Officer Peevler left an officer at the residence to keep it secure, proceeded to obtain a search warrant based upon the evidence of a methamphetamine lab, and returned to the residence shortly thereafter. While executing the search warrant, Officer Bass saw a 1010 Massey Ferguson tractor (1010) he believed had been reported stolen from Chrisman, Illinois, along with numerous other reportedly stolen vehicles and items. Officer Bass confiscated the 1010 in order to determine from the vehicle identification number whether the vehicle was actually stolen. The subsequent investigation determined the 1010 had been stolen in Arkansas.

Walter Holliman and his father, J.D. Holliman (J.D.), were indicted in federal court for organizing a theft ring involving four-wheelers, small tractors, and other small motorized vehicles. The indictment listed the serial numbers of thirteen vehicles alleged to have been stolen by the Hollimans. Two unindicted co-conspirators assisted the police in the investigation of Holliman and J.D. The testimony of these co-conspirators helped the police recover approximately forty vehicles taken as a part of the conspiracy and sold to unsuspecting buyers in Arkansas and in Indiana.

At trial, defense counsel elicited testimony from one of the unindicted co-conspirators that Holliman "indicated that he wanted to go to Arkansas but could not do so in his own vehicle. He was on probation." When the government later asked another unindicted co-conspirator what Holliman wanted him to "take care of down in Arkansas," and specifically asked: "Tell how that happened," the witness responded "[w]e had just discussed that we needed to get down here, and he couldn't leave the state because he was on a federal hold or something like that, probation." Holliman moved for a mistrial based upon the government's question and the district court denied the motion.

A jury found Holliman guilty on all counts charged in the indictment. The district court sentenced Holliman based upon a loss calculation of over forty vehicles proven to have been stolen during the conspiracy. Based upon both trial testimony assessing the value of the vehicles and evidence presented at the joint sentencing hearings of Holliman and J.D. on June 7 and 8, 2001, the district court assessed eight points for stolen property attributable to Holliman valued at between $70,000 and $120,000, pursuant to U.S.S.G. § 2B1.1(b)(1)(I). This calculation was based not only upon the thirteen vehicles listed in the indictment, but also upon the value of additional vehicles stolen during the conspiracy.

The established value of the thirteen vehicles listed in the indictment alone was $69,777. With the inclusion of the value of the other vehicles stolen in the course of the conspiracy and testified to at trial, the value of the stolen property exceeded $70,000. At the sentencing hearings of Holliman and J.D., the government presented evidence of a loss calculation of $156,272 based upon the value of the thirteen vehicles listed in the indictment, and additional items either recovered from the Holliman property and returned to their owners or missing from victims. The district court declined to include loss from the resale of items that the government had used in its calculation. The district court concluded the amount of loss was "well within the range of the $70,000 to $120,000," because "there was information submitted by the government in its motion and also at the time of trial from which ... there is no doubt that the amount of loss is above 70,000."

II. DISCUSSION

Holliman argues the evidence of the 1010 found at his residence should have been suppressed. He contends this evidence exceeded the scope of the search warrant, and therefore its seizure violated his Fourth Amendment rights. Holliman asserts the government used a dragnet because as many as seventy-two items were seized, but the overt acts of the indictment only alleged Holliman stole three of these seized items. Holliman overlooks the fact that his wife gave the officers consent to search the outside of the premises for the stolen four-wheeler parts. Even if she had withdrawn her express consent to search, the officers were authorized to seize items in plain view not listed in the warrant as long as there was probable cause to believe the items were associated with criminal activity. See United States v. Weinbender, 109 F.3d 1327, 1330 (8th Cir.1997). Here the officers...