IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 92-1652

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STEVE WAYNE HOLLOWAY and

EDWIN L. HINES,

Defendants-Appellants.

_________________ _________________________________________________

Appeals from the United States District Court for the

Northern District of Texas

_________________________________________________________________ ( 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-2-

Between October 30, 1991 and December 9, 1991, five robberies

w ere committed at food stores in the same area of Fort Worth,

T exas. 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 ro bbery occurred, officers

arrested Holloway and Hines based on identifications made by

victims of the robber ies. 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 relat ion to the commission of a crime of

violence in violation of 18 U.S.C. § 92 4(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").

H olloway 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-3-

prejudice him at trial. The district court, however, denied

Holloway's motion for severance and thus Holloway p roceeded to

trial on the robbery charges as well as the weapons charge. After

the government had presented its witn esses 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 eviden ce 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, s tating 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 what1 Under 18 U.S.C. § 924(c), i n the case of a second or

subsequ ent conviction under this section a defendant "shall be

sentenced to imprisonment for twenty years."

-4- 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 pu rsuant 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 U nited 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 D eal v. United

States , ___ U.S. ___, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993). The-5-

district court therefor e did not err in enhancing Hines's and

Holloway's se ntences 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 fail ing 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 F ederal Rules of Criminal Procedure provides the

following:

Two or more offenses may be charged in the same

indictment or information in a sepa rate count for each

off ense 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. U nited 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-6-

inquiry is wh ether, as a matter of law, initial joinder of the

counts was proper" under Rule 8(a). U nited 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

i s arrested, which is unrelated to the crime for whic h 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 r obberies 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.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

deter mine 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 o f the evidence to preserve the error. U nited States v.

Stouffer , 986 F.2d 916, 924 n.7 (5th Cir. 1993).

-7- 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

se vering the weapons charge. 2 Plainly speaking, we can see no

basis for the United States Attorney to have included this weapons-8-

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 Hollo way'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

i t 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 atten tion 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 show ing specific and compelling

prejudice that resulted in an unfair trial. U nited States v.

Chagra

, 754 F.2d 1186, 1188 (5th Cir.), cert. denied

, 474 U.S. 922

(1985).-9-

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. U nited 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, whi ch 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 re peatedly informed that Holloway

was a convicted felon. During voir dire, the district court

explai ned 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 f act 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 to3 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.

-10- 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 convicti on would have been admitted pursuant to Federal

Rule of Evidence 609 even if the weapons charge had been severed; 3

therefore, Holloway could not hav e 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 weapons4 We note that if the weapons charge had been related to the

robbery cha rges, 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. S ee Breeland v.

Blackburn , 786 F.2d 1239, 1241 (5th Cir. 1986).

-11- 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 robb ery 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 car ry 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 m otion for-12-

severance con stitutes 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 se ntencing 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 g ranted 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.