2003 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
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w . v i l l a no va . e du/thir dc ir c uit_2003/240NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
No. 02-4481
UNITED S TATES OF AMERI CA

v. HARVEY HOLL AND, Appellant
On A ppeal from the Un ited States District Co urt for the M iddle D istrict of P enns ylvania (D.C. Crim. No. 01-00195-06) Distric t Judg e: Ho nora ble W illiam W . Cald we ll
Submitte d United Thir d Circuit LAR 34.1(a) September 9, 2003 BE FO RE : BA RR Y, B EC KE R, a nd G RE EN BE RG , Circu it Judges

(Opinion Fi led: Sept ember 30, 2003)

OPI NION
GR EE NB ER G, Circu it Judge
. This matt er comes on befor e this court on an a ppeal by Harvey Holl and (“Holland” ) from a judgment of convict ion and sent ence enter ed in thi s cri minal cas e on December 13, 2002. Holl and was convict ed on two counts of afive-c ount second2

superseding indict

ment in which he was charged in thr ee counts: Count II, for intentio nally and kno win gly man ufac turing, d istributing , and p osses sing w ith the in tent to manufacture and distribut e 50 grams or more of c ocaine bas e, al so known as “crack”
coc ai ne, andai di ng, abe ttin g, counse li ng, commandi ng, in duc in g, andpr ocuri ng t he s ame in viol ation of

21 U.S.C. § 841(a )(1) and 18 U.S.C. § 2; Count IV, causing the deat h of Jason Harri gan through t he use of a fi rearm during and in rel ation to a drug tr afficki ng crim e an d a d rug traf

fick ing con spira cy in v iolat ion of 1 8 U .S.C . § 92 4(j) a nd 1 8 U .S.C . § 2; and Co unt V , cons piracy to m anufacture , distribute , and p osses s with the inte nt to manufacture and distribut e 50 grams or more of c ocaine bas e, al so known as “crack” cocaine, in viol ation of

21 U.S.C. § 846. Signifi cantl y, Shawn Anderson, call ed Sean And erson in the ind ictment, and S hiranda P osey, though no t charged a s defend ants, were
nam ed as co-co nspira tors in C oun t V an d A nder son w as na med as a co -con spirato r in Count IV. Holland’s brot her, J effrey

Holland, also was named as a de fendant i n the indictm ent an d w as a d efen dant w ith H olland at a join t trial. Both defendants were convict ed on allcounts i n which they were named except for Count IV rel ating to the deat h of Jason Harri gan. The jur y deadl ocked on that

count as to both de fendan ts and thus the c ourt declared a mistrial on it. On the g overnm ent’s motion the court l ater di smissed Count IV without pr ejudic e. The court sentence d Holland to c oncurrent

terms of l ife i mprisonment on t he two counts on which he was convict ed to be fol lowed by conc urrent five-year te rms of supervi sed rel ease and fi ned3

him $4,000. These custodi al te rms were to be s erved consec utively t o sentence s imposed by the D auph in Co unty Co urt. On this app eal H olland conte nds (1 ) the ev idenc e of c onsp iracy wa s legally insuffi cient

to sust ain his convict ion for cons piracy because i t did not

show that he had a unity of purpose wit

h Jeffrey Holland but mer ely

happened to be wit

h him at var ious times; (2) the court a

bused it s discr etion in denyi ng his moti on to sever the trials of the two defendants ; (3) the court erred in admitt ing int o evidence pur suant t o Fed. R. Evid. 801 (d)(2)(E ) two statem ents m ade b y Shaw n A nder son th at he re gretted being invo lved in Harrigan’ s homicide a s ther e was no foundati on that he made the st atements during t he
course or in furt herance of t

he conspir acy; (4) t

he court a

bused it s discr etion in admitt ing evidence of a t

rip Holl and all egedly

made to New York with Jeffrey Holland where the trip occurred o utside of the p eriod of the c onspiracy by more tha n 18 m onths and there was no connecti on between the t rip and ot

her evide nce of a conspi racy ; and (5) the prose cution did n ot pres ent ev idenc e of th e qua ntity of cra ck co caine , thereb y failing to
es tab lis h a n e lem en t o f th e c rim e a s re qu ire d b y Apprendi v. New Jerse y , 530 U.S. 466, 120 S. Ct . 2 348 (2 000 ). The di st ri ct co urt h adjuri sd ic ti on unde r 1 8 U. S. C. § 32 31 and w e have juri sdict ion under 28 U.S. C. § 1291. We deal with Holland’s point s in the order we have set them forth. We consider whether the evidence was sufficient to support the conspiracy conviction in the li ght most favorabl e to the government as t he verdic t winner and t

hus do not weigh t

he evidence4

our se lv es be y ond

de te rmini ng its su ff

ic ie nc yto suppo rt

th e c onv ic ti on. Fur

th ermor e, we do n ot m ake an in dep end ent d eterm inati on o f the wit nes ses’ cred ibility. See United States v. Cothran , 286 F .3d 17 3, 175 (3d C ir. 2002 ); United Stat es v. Dent , 149 F.3d 180, 187 (3d C ir. 1998 ); Un ited Sta tes v. R osario , 118 F .3d 16 0, 163 (3d C ir. 1997 ). In his suffici ency of t

he evidence c ontenti on Holland unders tandabl y r elie s heavily on our recent opinion in United Stat es v. Pr essle r , 256 F.3d 144 ( 3d Cir. 2001) . But i n Pressl er the government ’s probl em was that not withst anding evi dence that the appel lant ha d distribut ed “a siz eable amount of heroin, ” id. at 150, the government “never demonstrated the exi stence of

an agreement be tween [the appel lant] and at l east one ot her pers on.” Id. at 157. In contr ast, here the government pre sented evi dence that , if a ccepted, as ap pa re nt ly it w as , di d e sta bl ish th e c on sp ira cy. We review the dis tri ct court ’s ref usal t o sever t

he tri als of t

he two defendants on
an a bus e of

disc retio n ba sis. See United S tates v. Hart , 273 F.3 d 36 3, 36 9 (3 d C ir. 20 01)
. Furthermore, to obtain rel ief Holland must demonstrate that he suffered prejudice because of th e co urt’s refu sal to sev er th e de fen dan ts’ ca ses. See United Stat es v. Sandi ni , 888 F.2d 30 0, 305 (3d Cir. 1989 ). How ever, as H olland ack now ledges, the Su preme C ourt has indi cated t

hat “[t ]here i s a prefer ence in t he federalsys tem for j oint t rial s of defendants who are indic ted toge ther. ” Zafiro v. United States , 506 U.S. 534, 537, 113 S.Ct. 933, 937 (1993). Thus, his burden on the s everance i ssue is not li ght and, in fact , he cannot meet it. I n this case the various counts of t he indic tment re ferred t o relat ed5

matter s that

were a part

of the same act s or transacti ons or constitut ed parts of a common scheme or plan. Indeed, it s eems to us t hat thi s case i s preci sely the ty pe in which a j oint tri al is appropri ate. Finally on t he severanc e issue we note that the jur y di d not reac h a verdict on the very

seri ous charges on Count IV, an i ndicat ion that it carefully weighed the e vid enc e rela ting to ea ch d efe nda nt an d ch arg e. See Sandini , 888 F.2d at 307. In t

he circumstan ces, we w ill not reverse becau se the court de nied H olland’s mo tion to sever. Hol land’ s mo st

subs tant ia l c ont en ti on i s t ha t t he co urt e rr edinad mi ttin g Sh awn Anderson’s st atements into evi dence. By the time of the trial Anders on, who was lis ted
as a co-cons pirat or in Counts IV and V of the indi ctment, had been murdered. The government cal led Shir anda Posey , who also was l ist ed as a co-c onspirator i n Count V, as
a w itness a nd as ked h er abo ut a co nver sation s he ha d w ith A nder son. H olland objec ted to the conver sati on being rec ounted as he r egarded i t, qui te corr ectl y, as hears ay. The gov ernm ent res pon ded th at it wa s “a sta teme nt of a dm ission o f a pa rty that is invo lved in the kil ling” and inasmuch as Anders on was a co-conspi rator “it would c ome in in t

hat manner.” App. at

253. While t

he government di d not refe r speci fical ly to any rule of evidence t o support its cont ention, obviousl y i ts ar gument rel ied on Fed. R. Evid. 801(d)(2) (E) which provi des that “a stat ement bya coconspir ator of aparty during t he
cour se an d in fu rtheran ce of the co nspira cy” is not h earsay. T he co urt allow ed P osey to testi fy on that basi s. Referri ng to the de ath of Jas on Harrigan, which was the event charged i n Count6

IV of the indictmen t on wh ich the jury deadlock ed, Posey recited that A nderson ’s stat ement to her

was as foll ows: “He was just l ike I fuc ked up. He [Anderson] was say ing that

Mr. Harrigan would s til l be al ive if he hadn’t t

ried t o killhis uncl e.” Id. at 254 . Ho lland w as H arrigan ’s unc le. Plain ly this statem ent did not sa tisfy Rule 801(d)(2) (E) and shoul d not have been admi tted on t hat basi s and inas much the government does not

contend otherwise we have no need t o explai n the basi s for our
con clus ion on t his p oin t. Adrienne Stewart

late r als o test ifie d as to a s tate ment by Anders on. Stewart saw Anderson driving his car and flagged hi m down as she had just gotten out

of pris on and
wa nted to buy som e crac k. Stew art then got into An derso n’s ca r and they we nt to Stew art’s m other’ s hou se. Re ferring to H arrigan ’s sho oting s he sa id that A nder son s aid “that he was shot al l around. He [Anderson] said he didn’t want to shoot . He didn’t want Jeff – he didn’ t want him t o think t hat he wasn’t

trying to par

ticipate i n the act

so he was just shooti ng all around.” Id . at 336 -37. S he also said tha t An derso n w as up set. Prior to Stewart t esti fyi ng as to what Anders on had said, when the prosecutor asked if St ewart ever

had a conversation wit h Anderson concerni ng the murder of Ha rriga n bo th d efe nda nts o bjec ted. Id . at 335. The court

then sai d that t

he prosecut or “previous ly

indicated thi s is a s tate ment made in the course of a c onspira cy. ” Id. The prosecut or then s aid “al so it is an admis sion of a par ticipant – to be ing a participant in a murder.” Id. Thus, without citing the rul e the pros ecutor r elie d on the Fed. R. Evid.7

804 (b)(3) s tatem ent ag ainst inte rest ex ceptio n to the hears ay rule. Th e cou rt then s aid: “On that basi s, I will admi t it and grant an excepti on to both def endants. ” Id. It t

hus appears t hat the court changed the basi s of admissibili ty of Anderson’s s tate ments, t hough it i s possible that it s ruling allowing St ewart to r ecount Anderson’ s stat ement to her was predicated both on Rul e 801(d)( 2)(E) and Rule 804(b)(3) . In any event, as we have indica ted, the g over nm ent ac kno wled ges th at it wa s not a dm issible u nder the fo rmer rule but conten ds that it was ad missible und er the latter. Ho lland c onten ds, ho we ver, tha t Willi amson v. Unite d States , 512 U.S. 594, 114 S.Ct. 2431 ( 1994), pr ecluded t he admissi on of the st atements under Rule 804(b) (3), as the state me nts w ere p artia lly exc ulp ator y, inde ed m ore exc ulp ator y than incu lpato ry. W e belie ve th at the re is m erit to this c ont entio n, at le ast w ith re spe ct to S tew art’s state me nt. Willi amson makes clear that e xculpat oryporti ons of statements ot herwise i nculpat oryas to the de clarant are inadmissible. As the Court expl ained: “In our vi ew, the most faithful reading of

Rule 80 4(b)(3) is that it does no t allow adm ission of no n-self-inculpatory stat ements, even if t

hey ar e made within a broader narr ative that i s general lyselfinculpatory .” Id. at 600-01, 114 S.Ct. at 2435. Applying that principle here we conclude that A nder son’s statem ent to S tewa rt princip ally explain ed ho w h e w as no t involv ed in Harrigan’ s murder even t hough it pl aces him at

the scene of the cr ime with a weapon that he was firing. We reach this conclusion as he claimed to be firing i n a haphazard w ay so as to cr eate an i llus ion of his parti cipat ion in Harrigan’s murder though in reality he was8

not. Nevert

heless , we are satisfi ed that in the l ight of a ll t

he evidence a gainst

Holland that t hese fle eting s tate ments as r ecounted by Posey and Stewart coul d not possibly have affe cted th e outc om e of th e case no m atter ho w d ema ndin g a stan dard is app lied in
ma kin g a h arm less e rror a nalysis and thu s w e w ill no t rev erse by rea son of th em . See United States v. Cross , 308 F.3d 308, 326 (3d Cir. 200 2). We have considered Holl and’s fi nal two point s rel ating to the New York trip and the appl icat ion of Apprendi and conclude t hat the y ar e not meri tori ous and rej ect them without di scussi on except t o point out that we have no doubt

that t he evidence pe rmitt ed the ju ry to co nclu de th at H ollan d w as re spo nsib le fo r 50 or m ore gra ms of c rack coc aine
. See Pinkert on v. Unite d States , 328 U .S. 640, 66 S .Ct. 1180 (1 946). The judgment of convi ction and sentence entere d December 13, 2002, wil l be affirmed.

/s/ Morton I. Greenberg Circuit Judge