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_2003/262NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
No. 02-4005
UNITED S TATES OF AMERI CA

v. JEF FREY HOL LAND, 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. 01-00195-2) 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

(Fil ed: Septe mber 23, 2003)
OPI NION
GR EE NB ER G, Circu it Judge
. This matt er comes on befor e this court on an a ppeal fr om a judgment of convict ion and sent ence enter ed in thi s cri minal cas e on October 15, 2002, foll owing a jury verdict convict ing the a

ppellant Jeffr ey Holl and (“Holland”) on thr ee of the four2

coun ts of th e seco nd su perse ding indictm ent in th is case . In partic ular, the three c oun ts
on w hich th e jury con victed him w ere as follow s: Co unt I, inte ntiona lly and kn ow ingly
man ufac turing, d istributing , and p osses sing w ith the in tent to m anufacture and d istribute 50 grams or more of coc aine base , al so known as “crack” coc aine, and aidi ng, abetting,
cou nse ling , com ma ndi ng, i ndu cing , and pro cur ing the s am e in v iolat ion of 2 1 U .S.C . § 841 (a)(1) a nd 1 8 U .S.C. § 2; Co unt III, inte ntiona lly and kn ow ingly usin g a fire arm in fur ther anc e of

a dr ug t raffickin g cr ime in v iolat ion of 1 8 U .S.C . § 92 4(c ) an d 18 U.S .C. § 2; and Co unt V , cons piracy to m anufacture , distribute , and p osses s with intent to manufacture and distribut e 50 grams or more of c ocaine bas e, al so known as “crack”
coca ine, in v iolation of 2 1 U .S.C. § 846 . In add ition, he wa s cha rged in Co unt IV with
caus ing the death of Ja son H arrigan throu gh th e use of a firearm used durin g and in relat ion to d rug traf

fick ing and a dr ug t raffickin g co nsp iracy in vio latio n of 18 U .S.C . § 924(j) and 18 U.S.C. § 2. The jury , however, deadlocked on t hat count and the court lat er dismis sed it . The indi ctment i ncluded l argely parall el char ges agains t Harvey Holland, Holland’s brother , who therea fter was a def endant at their joint tri al. Harvey Holl and, how ever, wa s not charg ed w ith a violation of 18 U.S.C . § 924(c). Th e district court
se nt en ce d H ol lan d t o c on cu rre nt lif e s en ten ce s o n C ou nt s I a nd V to be fo llo w ed by a
con se cutiv e t erm of 6 0 mon th s onCoun t I II . I n ad di ti on, th e co urt o rd er ed t hat th e t erms of impris onment be foll owed by concurr ent te n-y ear te rms of supervi sed rel ease on Counts I and V and a concur rent t hree-y ear te rm of supervi sed rel ease on Count II I and3

fined Holl and $6,000. 00. Holland cont ends that

the evi dence was not suffi cient “to prove be yond a reasonabl e doubt the offense of Conspir acy t o Distribute 50 grams or more of crack cocaine. ” Br. at

2. He also cont ends that he is entitl ed to a new tr ial on t he conspir acy and dist ribut ion counts because “t he court e rred when it

gave an inacc urate, unbalanced and mislea ding suppl emental i nstruc tion in response t o [a] jur y ques tion. ” Id . The part ies are in a greement t

hat we revi ew the evidence in the l ight most favorabl e to the government on Holl and’s fi rst c ontenti on, ci ting United Stat es v. Cothr an , 286 F.3d 173, 175 (3d Cir. 2002), and Un ited Sta tes v. R osario , 118 F.3 d 16 0, 16 3 (3 d C ir. 19 97)
. Moreover, the government, citing United Stat es v. Dent , 149 F.3d 180, 187 (3d Cir. 1998), poi nts out

that we do not

weigh the evi dence or make an i ndependent determi nation a s to the witness es’ cr edibil ity and we must uphold the verdict if any “rati onal” trier

of fact coul d have found the el ements of the offense est ablis hed beyond a
reaso nable dou bt. Th e partie s are als o in ag reem ent as to our sta ndar d of review with respect to the s upplementaljury instructi on as they

both st ate that we use an abuse of discr etion s tandard, citing Walden v. Georgia- Pacifi c Corp. , 126 F.3d 506, 513 (3d Cir. 1997), and Beardshallv. Minuteman Pres s Inte rnati onal, Inc. , 664 F.2d 23, 28 (3d Cir. 1981). The di stri ct court had juri sdict ion under 18 U.S. C. § 3231 and we have juris dicti on u nde r 28 U.S .C. § 129 1. Preli minarily we want to make i t cle ar that the government ’s obser vation t hat4

Ho lland ’s fir st arg um ent, i.e
. , the evidence on t he conspir acy c ount, Count V, was insuffi cient

cannot help him even if we accept it, has not ent ered into our consi derati on of this case. The gover

nment predi cates t

his ass erti on on the ci rcumstance that Holl and does not challenge the sufficiency of the evidence to support his conviction on Count I. Thus,
a revers al limited t o Count V would not affect t he verdic t on Count I or the concur

rent life sentence that t

he court imposed on that c ount. I ndeed, Holl and does not eve n make a spil l-over

argument that the insuffi ciency of the evi dence on Count V prejudi ced him on Co unt I. See Un ited Sta tes v. P elullo , 964 F.2d 193, 207 (3d Cir. 1992). Nevertheless,
we v iew the su fficiency of the ev idence arg umen t no differen tly t han w e wo uld if the jury had convict ed him only on Count V. That sai d, we reje ct Holland’s suffi ciency of the evidence argument as we are satis fied that the evidence s upported t he convict ion. Ho lland’s conte ntion w ith resp ect to th e sup plem ental ju ry instruction relates to proceedi ngs on June 6, 2002. While t he trans cript

does not se t fort

h the jur y’ s questi on verbatim it i ncludes t

he judge’s comment that : “Folks , we have the ques tion t hat y ou asked about t

he 20 dollar bag and what i t weighs; is that corr ect? And you i ndicat e that you have no r eference t o determi ne weight, no direct test imony as to the s pecifi c weight
amou nts, etcetera.” App . at 623. Ho lland does n ot suggest that the c ourt’s charact erization of t

he jury ’s question was inacc urate and neithe r he nor hi s brothe r object ed to the court’ s charact erization of i t at t he time. The weight was signi ficant because the court in its charge had expl ained that if the jur y det ermined that the materi al5

invo lved w as crac k coc aine a nd a d efen dant w as gu ilty of distribu tion or p osses sion o f it with intent to distribu te, the jury w ould be as ked “ to dete rmine the ap prox imate quan tity of the cocaine involve d if y ou can do so.” Id . at 601. The court, in fact, did ask the jury to indi cate on i ts ver dict s heet, if it found Holland gui lty

on Count V, whether t

he quantit y was 50 grams or more, 5 gr ams or more but l ess than 50 grams, or less t han 5 gra ms . Th e jur y fou nd t hat th e qu antit y wa s 50 gra ms or m ore . In respons e to the questi on the court referr ed to the test imony and t hen, follow ing a d iscussio n w ith the a ttorneys, ad ded to its origina l com men ts in resp onse to the question. Holl and contends t hat the supplementa l ins truction inac curate ly stat ed the facts in the case , precluded the j uryfrom considering import ant fact s regar ding the wei ght involved, and misled and coerced t he jury . We have revie wed the matter and have concluded t

hat the court’ s supplement al ins truction except in one res pect was unexcepti onable. In the cour

t’s originalsupplementa l ins truction before its discuss ion with t he attorne ys it indicated that “[ n]atur ally, we ar e hop eful th at a ve rdict ca n be r each ed in th is
cas e, bu t we don ’t w ant a nybo dy to re ach a ve rdic t just for th e sa ke o f rea chin g a v erd ict. If the c ase is not res olved today, it wil l have t o be tri ed by anot her jur y at a lat er ti me.” Ap p. at 62 4. H olland correc tly points ou t that inso far as the co urt indic ated th at to av oid the neces sity for

a new tria l the j urywould have to re solve t he case “t oday, ” the st atement was “untrue” a s the j uryhad deli berate d only on that day and t

he jury had not sugges ted6

that it was deadloc ked. In t he circ umstances, we believe t hat the delibe rati ons could have been and indeed would have been conti nued to another day if the jury

did not r eturn a
ver dict o n th e da y the c our t gav e the sup plem enta l instr uctio n. While we reali ze that

the court

did decl are a mist

rialon Count IV on June 6, 2002, the day i t gave the supplement al char ge, we doubt t hat it would have declared a mistrial on the w hole case if the jury had not returned a verdict on a ny count that day. It is one thing to decla re a m istrial on o ne co unt o f a m ulti-cou nt indic tmen t but qu ite another to declar e a mistrial on an entir e case. After al l, e xperienc e teaches that when the jury cannot re turn a verdict on one count it may not be necessar

y t o retr y t hat count when there are convic tions on other count s. I ndeed, t hat is what happened here. On the other hand, w e think that the co urt wou ld have b een reluctant to d eclare a mistrial on the e ntire case for by

doing so i t sure ly

would have guarant eed that there would be another t rialas
we cann ot ima gine th at the g over nm ent w ould have drop ped th is seriou s case after o nly
one m istrial. We, neverthel ess, will not revers e by r eason of thi s error . As we have explai ned, following t

he court’ s incor

rect c omment there was a s idebar di scussi on and after that discuss ion the c ourt made further r eference t o the jur y r egarding t

he evidence. Thus, as the co urt app arently w as resp onsiv e to the attorne ys’ com men ts but m ade n o refe rence to the jur y r eaching a verdict we i nfer that neit her defendant

object ed to the comment or asked the c ourt t o clari fy i t. Moreover, after the court

completed i ts suppl emental7

instructi ons and the j uryreti red the c ourt st ated that “Did counse l wish t o place any object ion on the r ecord to my remarks?” App. at

625. At that ti me neither defendant suggested that the court’s com ments reg arding the jury reaching a verdict “toda y” were unfair o r co erciv e an d ne ither obj ecte d to them
. In the circumstance s, Holl and has an enhanced bur den to obta in a reve rsal by reason of t

he court’ s error

as he must show pla in err or to be s uccessful . After a ll, the
erro r w as e vid ent a nd h e ha d an ade qua te op por tun ity to ob ject to it bu t did not do s o. See United Stat es v. Olano , 507 U .S. 725, 731 -32, 113 S .Ct. 1770, 17 76-77 (1 993). In this regard, Fed. R. Cri m. P. 52(b) indicates t hat only plain e rror or

defects affecti ng substantial rights may be not iced. We are sati sfied t hat the error

could not have affecte d Ho lland’s subs tantial righ ts. As w e indic ated a bov e, the co urt told th e jury dur ing its charg e that it w ould be co ncern ed w ith the q uantity of the cra ck co caine only if it determi ned that

the material was cr ack cocaine and a defendant was gui lty of dist ribut ion of it or possessi on of it wit

h intent to dis tribute. Here the j ury ’s question rel ated t o weight and thus t

he questi on impli es that even before t

he jury asked the que sti on it had r esolved th e b as ic is su es inth e c as e f orunl es s i t h adth e we ig htdi d no t m atte r. Mor eo ve r, as we also have indicat ed, the evidence s upported t he convict ion for a c onspira cy i nvolving 50 grams or more of cr ack cocaine . In t he circ umstances, we could not hol d reasonably t hat the co urt’s erro r affe cted H olland ’s sub stantial rig hts. Ind eed, w e can not co nceiv e that if the court had not included the wo rd “today” in its supplem ental instruction the result here8

wo uld hav e be en d iffe ren t. In reaching our con clusion w e recogn ize that the coercive capacity of the cou rt’s
comm ent did not d epend on it being co rrect. Yet here w e canno t believe that the cou rt coerced t he jury for the j ury , notwit

hstandi ng the court ’s comment, deadlocked on Count IV. Accordingly, even though the jury did not know that

the count

would be dismis sed rather than bei ng retried if

it di d not reac h a verdic t, i t nevert heless was willi ng to compel the parties t o go through anot her trial on t

hat count . Therefor e it was not coerced by

the court’s comments. In closing ou r opinion, w e point out that this case demo nstrates wh y a court should be r eluct ant to r everse by reason of an er

ror not brought t o the attenti on of the district court. We reiter ate that fol lowing the s idebar c onference aft er the c ourt’ s ini tial response to the jur

y’ s questi on the court

amplifi ed its comments to t he jury , thus dem onstra ting tha t it was o pen to sugg estions . Con sequ ently, we have no d oub t that if the attorney s had object ed to the use of the word “t oday” t he court would have told t he jury to disregard it. Apparen tly t he defe ndants did n ot think at the time tha t the court pr ej udi ce d the m by

th e u se of

th e wo rdan d ne it

he r d o we now . For the for egoing rea sons the j udgment of conviction and sent ence enter ed October 15, 2002, will be a ffirmed.9 /s/ Morton I. Greenberg Circuit Judge