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The Honorable G. Thomas Eisele, United States District Judge for the Eastern

District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-2546

___________

United States of America, * 

* 

Appellee, * 

*

v. * Appeal from the United States

* District Court for the

Walter Holliman, * Eastern District of Arkansas.

* 

Appellant. *

___________

Submitted: March 13, 2002

Filed: May 29, 2002

___________

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
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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 coconspirators 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. 
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At trial, defense counsel elicited testimony from one of the unindicted coconspirators 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
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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 had probable cause to believe

the 1010 was a tractor stolen from Chrisman, Illinois. Id. It was reasonable to seize

the tractor temporarily to determine whether it was in fact stolen property. Based

upon the knowledge of the officers at the time and the incriminating character of all

the other items, the officers had probable cause to believe all of the seized property

was stolen, and the search was therefore reasonable.

Holliman argues the trial court abused its discretion in allowing evidence of

other crimes, wrongs or acts under Rule 404(b) of the Federal Rules of Evidence and

further improperly ignored Holliman's discovery request under Rule 16(a)(1)(c) of the

Federal Rules of Criminal Procedure. Holliman argues the testimony of the two

unindicted co-conspirators concerning specific items of property stolen by the theft

ring, but not explicitly listed in the indictment, was evidence of 'other wrongs' under

Rule 404(b). "[T]he trial court has broad discretion under [Rule 404(b)], and will be

reversed only when the evidence clearly has no bearing upon any of the issues

involved." United States v. Perkins, 94 F.3d 429, 434 (8th Cir. 1996) (alteration in
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original) (internal citations and internal quotation omitted). Here, the evidence

presented by the co-conspirators did not concern "other crimes, wrongs, or acts"

under Rule 404(b). The testimony of the co-conspirators concerned the very crime,

conspiracy to transport stolen vehicles, for which Holliman was standing trial. The

evidence of other vehicles stolen by the conspiracy was admissible under the doctrine

of res gestae, as this evidence was sufficiently connected to the charged crimes that

it tended logically to prove elements of these crimes. United States v. Riebold, 135

F.3d 1226, 1229 (8th Cir. 1998).

Even if this evidence were construed in some manner to be evidence of a prior

bad act, outside the conspiracy, the evidence was also admissible as intrinsic evidence

to show the full context of the crime charged and as "direct proof of a charged crime

that includes a plan or scheme element" due to the proximity in time and ongoing

nature of the theft ring at issue. United States v. Carroll, 207 F.3d 465, 468 (8th Cir.

2000). Furthermore, the district court gave a limiting instruction on this evidence.

Holliman's related argument under Rule 16(a)(1)(c) of the Federal Rules of Criminal

Procedure similarly lacks merit. The district court did not abuse its discretion with

regard to this evidence.

Holliman argues the district court erred in not declaring a mistrial after a

government witness testified that Holliman was on probation. We review a refusal

to grant a mistrial for an abuse of discretion. United States v. Encee, 256 F.3d 852,

854 (8th Cir. 2001). In this case, Holliman's counsel had already elicited testimony

from another witness that Holliman had been on probation. According to Holliman,

the district court forced his counsel to make this offer by requiring a witness to read

part of a prior statement that defense counsel was using to impeach the witness.

However, defense counsel could have withdrawn his line of questioning. The district

court's exercise of discretion to require the witness to read this statement was a

reasonable request. The district court did not err in refusing to grant a mistrial.
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Holliman's last argument is that the trial court erred in the assessment of the

amount of stolen property for which Holliman was held responsible under the

Sentencing Guidelines. Holliman asserts the loss calculation should have been based

only upon the thirteen stolen vehicles listed in the indictment. Holliman's sentence

must take into account "all acts and omissions committed, aided, abetted, counseled,

commanded, induced, procured, or willfully caused by the defendant" and "all

reasonably foreseeable acts and omissions of others in furtherance of the jointly

undertaken criminal activity, that occurred during the commission of the offense of

conviction, in preparation for that offense, or in the course of attempting to avoid

detection or responsibility for that offense." U.S.S.G. § 1B1.3(a)(1)(A) & (B). The

district court was correct in basing the loss calculation on all of the vehicles proven

by a preponderance of the evidence to have been stolen as a part of the conspiracy

and not only the thirteen vehicles listed in the overt acts of the indictment.

Furthermore, the loss calculation need not be determined with precision; "[t]he court

need only make a reasonable estimate of the loss, given the available information."

U.S.S.G. § 2B1.1, cmt. n3. Given the information available to the district court, the

determination that the loss was between $70,000 and $120,000 was reasonable. 

III. CONCLUSION

Accordingly, having considered all of Holliman's contentions on appeal, we

affirm.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.