United States v. Holloway
2016 U.S. App. LEXIS 11160
| 10th Cir. | 2016Background
- Robert Lee Holloway ran US Ventures and solicited investors from 2005, promising high futures-market returns; when trades lost money he misrepresented results, used new investor funds to pay others, fabricated reports, and diverted funds, causing losses over $15 million to 250+ investors.
- Indicted for four counts of wire fraud (18 U.S.C. § 1343) and one count of making and subscribing a false tax return (26 U.S.C. § 7206(1)); convicted by a jury and sentenced to 225 months’ imprisonment.
- Pretrial and trial counsel history: multiple court-appointed lawyers; Holloway retained a private lawyer shortly before trial but the district court denied a continuance and refused to permit withdrawal of appointed counsel, allowing the retained attorney to consult but not enter an appearance at trial.
- At trial the government introduced extensive documentary evidence (emails, deposition admissions, employee testimony) showing Holloway lied to investors and admitted to deceiving them; seven witnesses testified and four victims gave emotionally charged testimony about personal harms.
- District court excluded default-judgment documents against two government witnesses (Andres and Hall) under Rule 403 but permitted cross-examination and other impeachment about their roles, criminal charges, plea/cooperation, and bias.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Right to counsel of choice | Holloway says denial of substitution/continuance interfered with his chosen counsel and counsel relationship | Government/district court: Holloway missed deadlines; appointed counsel were ready; retained counsel could consult but late substitution would disrupt trial schedule | Court: No Sixth Amendment violation as to counsel-of-choice; claim is really ineffective-assistance and must be pursued collaterally |
| Admission of victim-impact testimony | Holloway argues emotional victim testimony was irrelevant, prejudicial, and emphasized in closing, undermining fair verdict | Government says victim testimony was relevant to prove specific intent and loss; cautionary instruction was given | Court: Even if admission was error, it was harmless given overwhelming evidence of intent and cautionary jury instruction |
| Confrontation / exclusion of default judgments | Holloway contends exclusion prevented full cross-examination of Andres and Hall about findings and bias | Government/district court: default-judgment documents were confusing and had low probative value; witnesses could be cross-examined on underlying facts, charges, plea/cooperation | Court: No Confrontation Clause violation; court allowed sufficient cross-examination to expose motive and bias; limits were reasonable |
| Sentencing enhancement for 250+ victims | Holloway argues insufficient evidence each of 250+ investors suffered "actual loss" required for §2B1.1 enhancement | Government relied on PSR findings of 250+ victims and >$15M loss; Holloway failed to timely/sufficiently object at sentencing | Court: Enhancement upheld; Holloway waived specific challenge by not making a proper objection at sentencing, so no plain error |
Key Cases Cited
- United States v. Gonzalez-Lopez, 548 U.S. 140 (right to counsel of choice is structural error when wrongly denied)
- United States v. Copple, 24 F.3d 535 (3d Cir. 1994) (victim-impact testimony can be irrelevant or unfairly prejudicial to proof of intent; harmless-error analysis possible)
- United States v. McKeighan, 685 F.3d 956 (10th Cir. 2012) (erroneous denial of counsel of choice requires no prejudice showing)
- Delaware v. Van Arsdall, 475 U.S. 673 (1986) (Confrontation Clause allows reasonable limits on cross-examination; focus on whether jury had sufficient information on witness bias)
- United States v. McVeigh, 153 F.3d 1166 (10th Cir. 1998) (admission of emotional testimony reviewed for harmlessness; cautionary instructions can cure prejudice)
- United States v. Galloway, 56 F.3d 1239 (en banc) (ineffective-assistance claims generally must be raised in collateral proceedings)
- United States v. Oliver, 278 F.3d 1035 (10th Cir. 2001) (limits on cross-examination upheld where defendant had ample opportunity to show bias)