U.S. v. Holloway, 91-8109

• Decision Date: 04 September 1992
• Docket Number: No. 91-8109,91-8109
• Citation: 971 F.2d 675
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cecil HOLLOWAY, Jeffrey Rudder, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 675

971 F.2d 675

UNITED STATES of America, Plaintiff-Appellee, v. Cecil HOLLOWAY, Jeffrey Rudder, Defendants-Appellants.

No. 91-8109.

United States Court of Appeals Eleventh Circuit.

Sept. 4, 1992.

James K. Jenkins, Maloy & Jenkins, Atlanta, Ga., for Holloway.

Paul S. Kish, Federal Defender Program, Inc., Atlanta, Ga., for Rudder.

William R. Toliver, Asst. U.S. Atty., Atlanta, Ga., for U.S.

Appeals from the United States District Court for the Northern District of Georgia.

Before BIRCH, Circuit Judge, JOHNSON ^*, and BOWNES ^**, Senior Circuit Judges.

BOWNES, Senior Circuit Judge.

Defendants Jeffrey Rudder and Cecil Holloway appeal their convictions for conspiracy and unlawful taking of goods moving in interstate commerce. Holloway also appeals his sentence. We affirm the convictions of Rudder and Holloway. We vacate the sentence of Holloway and remand for resentencing.

Background

Holloway was employed as a security guard for ARC Security Service. ARC was under contract to provide security for Southeastern Freight Lines, Inc., a carrier and shipper of foreign and interstate freight. Holloway was assigned by ARC Security to provide security at Southeastern's trailer yard.

While employed at Southeastern, Holloway began to deliver large quantities of clothing to Jay Preston Hill, who operated a booth at a flea market in suburban Atlanta. Hill would locate a buyer, deliver the clothing, and share the proceeds with Holloway.

On September 9, 1988, Holloway contacted Hill and asked him to come to the Southeastern yard to look at ASICS gore-tex jogging suits. When Hill arrived at the yard Holloway took him to where the suits were located. Hill proceeded to take twenty jogging suits that night. The next day Hill returned to the yard and took an additional twenty-four boxes of jogging suits. Each box contained twenty suits.

A few weeks after the theft of the jogging suits, Southeastern fired Holloway, thus cutting off his access to the freight yard. Holloway promptly informed Hill that he knew of another security guard, defendant Rudder, who would be willing to let them into Southeastern's trailer yard. Hill obtained a tractor from a friend. He also rented storage space at a local storage lot. Hill and Holloway then rented a forklift and three rental trucks. Holloway, using false identification, signed the rental agreements under an assumed name. Rental clerks later identified Holloway as the person who actually signed the rental agreements and Hill as accompanying Holloway during the rental of the trucks and forklift.

A few days before October 21, 1988, Holloway and Hill went to the Southeastern yard during Rudder's shift as a security guard. Holloway introduced Hill to Rudder. The three agreed to steal entire trailers of merchandise from the freight yard and formulated a plan to do so. They planned to use Southeastern documents to identify the trailers they wanted. Rudder would then call Holloway by telephone to notify him when the trailers could be taken without detection. Holloway was to relay the information by radio to Hill, who would then drive the tractor to the gate of the yard where Rudder would allow him to enter. Rudder would then assist Hill in locating the trailers that they planned to steal. The tractor would be attached to the selected trailers and driven out of the yard.

Using this plan, the three stole four trailers between October 21 and October 24 from the Southeastern yard. Of the four trailers, one was empty. The other three contained women's shoes, armchairs, and rattan furniture.

Hill was subsequently arrested while attempting to sell the shoes to undercover FBI agents. Holloway and Rudder were also arrested. A grand jury returned a six-count indictment charging Holloway and Rudder and naming Hill as an unindicted co-conspirator. ¹ The indictment charged the following: (1) Holloway conspired with Hill to steal and unlawfully take from a trailer storage facility a shipment of ASICS-Tiger athletic clothing in violation of 18 U.S.C. § 659; (2) Holloway and Hill stole a partial shipment of ASICS-Tiger athletic clothing; (3) Holloway, Rudder, and Hill conspired to steal and unlawfully take from a trailer storage facility a shipment of women's shoes, rattan furniture, and wooden armchairs in violation of 18 U.S.C. § 659; (4) Holloway, Rudder, and Hill stole a shipment of Meldisco women's shoes in violation of 18 U.S.C. § 659; (5) Holloway, Rudder, and Hill stole a shipment of rattan furniture in violation of 18 U.S.C. § 659; and (6) Holloway, Rudder, and Hill stole a shipment of wooden armchairs in violation of 18 U.S.C. § 659.

Both Rudder and Holloway pled not guilty. Prior to trial, Rudder moved for severance under Federal Rule of Criminal Procedure 8(b). The trial court denied the motion. A jury found defendants guilty on all charges.

Holloway was sentenced to thirty months incarceration, two years of supervised release, and restitution in the amount of $155,287.70. Rudder was sentenced to fifteen months incarceration, two years of supervised release, and restitution in the amount of $4,095.20.

Analysis

Rudder claims that the trial court erred by denying his motion for severance. Holloway and Rudder jointly argue that the lower court abused its discretion by denying a motion in limine concerning eye-witness identification testimony. Holloway raises three other issues: (1) whether the trial court abused its discretion by denying his request for a continuance to obtain independent expert document analysis for purposes of handwriting and fingerprint comparison; (2) whether he is entitled to a reversal of one conspiracy conviction because there was insufficient evidence for a jury to find two conspiracies; (3) whether the court improperly calculated the amount of his share of restitution.

A. Joinder

Rudder argues that his indictment was improperly joined with that of Holloway. He contends that for two defendants' indictments to be joined the offenses must arise out of the same series of transactions. Because the indictment charged two conspiracies, one of which Rudder took no part in, he argues that his indictment for conspiracy and theft was not part of the "same series of transactions" as that of the indictments for conspiracy and theft that charged only Holloway. Rudder contends that his conviction therefore should be reversed.

Federal Rule of Criminal Procedure 8(b) states:

Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

In a challenge under Rule 8(b) we review " 'the propriety of joining two or more defendants in a single indictment in the first instance.' " United States v. Wilson, 894 F.2d 1245, 1252-53 (11th Cir.1990) (quoting United States v. Morales, 868 F.2d 1562, 1567 (11th Cir.1989)), cert. denied, --- U.S. ----, 110 S.Ct. 3284, 111 L.Ed.2d 792 (1990). We examine de novo the allegations on the fact of the indictment to determine whether joinder was proper. Morales, 868 F.2d at 1567.

For joinder to be proper defendants must have participated in the "same series of acts or transactions." Fed.R.Crim.P. 8(b). "In order to meet the 'same series of acts or transaction' requirement of Rule 8(b) the 'government must demonstrate that the acts alleged are united by substantial identity of facts and/or participants.' " Wilson, 894 F.2d at 1253 (quoting Morales, 868 F.2d at 1569). Each participant need not participate in all acts or even know the other participants' roles in the ventures. United States v. Andrews, 765 F.2d 1491, 1496 (11th Cir.1985), cert. denied, 474 U.S. 1064, 106 S.Ct. 815, 88 L.Ed.2d 789 (1986).

We need not address whether joinder was proper, however, because we find that any possible misjoinder was harmless error. In United States v. Lane, 474 U.S. 438, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986), the Supreme Court held that "an error involving misjoinder 'affects substantial rights' and requires reversal only if the misjoinder results in actual prejudice because it 'had substantial and injurious effect or influence in determining the jury's verdict.' " Id. at 449, 106 S.Ct. at 732 (emphasis added) (citation omitted); see also United States v. Fernandez, 892 F.2d 976, 985 n. 8 (11th Cir.), cert. dismissed, 495 U.S. 944, 110 S.Ct. 2201, 109 L.Ed.2d 527 (1989). We see no indication in the record that the joinder influenced the jury verdict nor did Rudder avert to any such prejudice. Rudder only argued that misjoinder was prejudicial per se. We therefore find no reversible error.

B. Eyewitness Testimony

Rudder and Holloway argue that the trial court abused its discretion by denying their motion in limine to admit the testimony of an expert in eyewitness identification. This argument is without merit. The established rule of this circuit is that such testimony is not admissible. See United States v. Benitez, 741 F.2d 1312, 1315 (11th Cir.1984), cert. denied, 471 U.S. 1137, 105 S.Ct. 2679, 86 L.Ed.2d 698 (1985); United States v. Thevis, 665 F.2d 616, 641 (5th Cir. Unit B), cert. denied, 456 U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303 (1982). We see no reason to depart from our precedent in this case.

C. Denial of Continuance

Holloway argues the court abused its discretion by denying his request for a continuance on the first day of trial to obtain independent scientific analysis of the rental agreements allegedly signed by Holloway. He contends that the government violated Federal Rule of Criminal Procedure 16(a)(1)(D) by failing to disclose prior to the first day of trial that the truck rental agreements had been subject to fingerprint and handwriting analysis prior to trial. ²

The fingerprint analysis found latent fingerprints on the...