United States v. Frank Holder

building from the 21st Avenue to Holder’s OOSTERHOUT, Before VAN Cir- Senior apartment house. was Johnson later ob- WEBSTER, Judge, cuit HEANEY and and departing served apart- 21st Avenue Judges. Circuit building returning ment to Adams’ ve- HEANEY, hicle. Johnson handed Judge. quantity Circuit Adams of which heroin was packaged identically to charged Frank Holder was a three- under that purchased on March 10. intentionally count indictment with distrib- uting aiding abetting and with following day, On the placed Adams two heroin. charged distribution of Count I phone calls to Doris Nunn to arrange a grams Holder with the distribution purchase of 2.64 third heroin Again, from Holder.2 of heroin on March 1976. Count II these conversations were recorded and charged Vernon Johnson with played jury. to the Following the second grams distributing call, Adams, heroin on Novem- Agent Campion and Nunn ber Count III charged Doris drove to Holder’s Agent residence. Mal- grams Nunn and Holder with distributing Long positioned colm was inside Holder’s of heroin following day. appel- apartment on the building and observed Nunn en- conversation, During negotiations each told John- 2. Both Adams conversations covered over arranging pur- price arrangements son that he interested in was of the heroin and chase, price negotiated pickup. was “Blind “Blind Red” and “Red” were men- supplier. supplier. Again, Red” or was “Red” mentioned as the as the tioned neither conver- particularly probative Blind Red was Holder’s Neither was nickname. sation of Holder’s particularly probative conversation was involvement. Holder’s involvement. objects and de- tering appellant’s apartment relates to Holder’s involvement in a rejoined place eight transaction that took parting shortly thereafter. months She purchase charged after in Count I. Agent Campion in their car and Adams and Each counts listed in the indictment of heroin simi- produced packages four foil were discrete transactions and we believe directly from Hold- to the ones obtained lar considered the evidence on each Johnson and from Vernon er on March 10 Febre, separately. See United v. 425 preceding day. 107, (2nd 1970), F.2d denied, 113 Cir. cert. facts, convicted Holder On these 849, 40, 400 U.S. 91 S.Ct. 27 L.Ed.2d 87 him on acquitted and III and on Counts I (1971). was repeatedly cautioned Holder to The court sentenced Count II. weigh to the evidence on each count sepa on each count years imprisonment twelve rately obviously did so as their verdict con- terms to be served ordered those acquittal on Count II demonstrates. addition, directed a the court currently. In Thus, we have no difficulty sustaining years three on each parole term of special Holder’s conviction on Count I. count, concurrently. also to be served II. The Concurrent Sentence Rule and argues that it was appeal, On the Admissibility of Certain hearsay statements of improper to admit Hearsay Testimony. into evidence because the Doris Nunn by indepen- to establish government failed addressing Before the evidentiary III, a existed be- issues raised by evidence that Count we must dent consider government’s argument that we Nunn and Holder. Had the court invoke tween the concurrent sentence rule pass and not hearsay Hold- excluded Nunn’s 3 validity hearsay claims. remaining er contends the evidence was Whether the rule applied should be in a support to the verdict on Count insufficient particular judicial situation is a matter of addition, complains he that his con- III. discretion, States, Sanders 541 I must be reversed because viction on Count 190, (8th 1976), denied, 193 Cir. cert. erroneously received evidence on Count 1066, 796, 429 U.S. 97 S.Ct. 50 L.Ed.2d 784 jury’s tainted the verdict on Count I. III but, (1977), ought in our not to agree We that Count III must be reversed be invoked where there is a likelihood that I. but sustain Holder’s conviction on Count application may expose its a defendant consequences the risk of adverse caused Impact I. Potential of Inadmissible an invalid but unreversed conviction. See I. Hearsay on Count (8th Lindsay, United States v. 552 F.2d 263 argues appellant allegedly Neff, Cir. United States v. 525 F.2d hearsay relating to inadmissible (8th 1975) (J. Lay, 361 Cir. concurring); Count tainted his conviction under Belt, (8th United States 516 F.2d 873 Cir. argu I. We find no merit in this 1975), denied, 1056, cert. 423 96 U.S. S.Ct. There was substantial direct evi ment. 790, (1976). 46 L.Ed.2d 646 See also Benton of Holder’s involvement in the March dence 784, 787-793, Maryland, 395 U.S. 89 S.Ct. 10 sale. Informant Adams testified that he 2056, (1969); 707 L.Ed.2d United States purchased directly the contraband from Tanner, 128, (7th Cir.), cert. Agent Campion’s testimony cor Holder. denied, 949, 409 U.S. roborated much of Adams’ statement. The (1972); Febre, L.Ed.2d 220 United States v. hearsay appellant supra evidence to which the at 113. provides (1977);

3. The concurrent sentence rule S.Ct. 50 L.Ed.2d 784 Neff, (8th where a defendant receives concurrent sen 525 F.2d 361 Cir. States, plural counts of an tences indictment Entrekin v. United 508 F.2d 1328 denied, (8th 1974), where the conviction on one count is found to cert. 421 U.S. good, reviewing pass upon (1975); court be need not S.Ct. Tarvestad v. validity 1969), of the defendant’s conviction on 418 F.2d 1043 another count. See Sanders v. United 90 1976), L.Ed.2d 116 instance, identify longer period time, we can In this they may be treat- in which our failure least one circumstance arising separate ed as out of offense behav- expose will to review an erroneous count iors and separate rated as convictions under potential the defendant adverse conse the salient factor formula. This is but an- assessing prisoner’s eligibili quences. way other in which our failure to review an ty parole, parole boards are instructed erroneous count under the concurrent sen- factors, including to consider a number of fact, tence rule may, prejudice a defend- prisoner’s severity rating” “offense ant’s early parole. chances for his “salient factor score.”4 Both are deter For many years, we applied have pursuant guidelines published by mined concurrent sentence rule in the interest of the United Board of Parole.5 To judicial economy with the reservation that calculate prisoner’s severity offense rat it not be followed might where it expose ing, the Board has established severity rat the defendant to substantial risk of adverse ings for various offenses and a recom consequences. States, Sanders v. United range parole mended time for which corre 193; supra at Belt, United States v. supra sponds particular to a severity rating. at 875-876. recently, Until we have lacked Among published the notes to the guide evidence applying that the concurrent sen- lines, statement, appears there “If an tence rule would influence parole status multiple offense behavior involved separate decisions. It appears now that the United offenses, severity may level be in States Board of regulations Parole’s for de- 6 Thus, guidelines creased.” ex termining parole eligibility necessitate a planatory notes confirm the fact that our reassessment of that doctrine.8 Because we particular failure to review a count of a have identified the possibility of adverse may multi-offense conviction well lead to a consequences, we will consider the validity higher and, severity rating accordingly, re of Holder’s evidentiary claim. parole duced opportunities. Turning then to addition, score, hearsay- the salient factor argument, related general which is rule assessing prisoner’s also used in a is that by statements made eligibility coconspirator a parole, point for establishes a in fur rat- therance of the unlawful ing part based in on the offender’s association are not number hearsay prior and are Multiple properly convictions.7 offenses are against admissible both the declarant conviction, as and his single rating coconspirators. considered Nixon, United States v. purposes, 683, where the various counts 418 arise U.S. 94 3090, (1974); S.Ct. 41 L.Ed.2d single from a offense behavior. For exam- 1039 United Scholle, States v. ple, (8th when a defendant is convicted of sever- 553 F.2d 1109 Cir. 1977); occurring Frol, al heroin sales within limited United States v. months, (8th period, say 1975);

time Rich, two offenses Cir. United States v. those 518 single (8th are treated as a behavior and F.2d 980 rated United v. States single When, Buckhanon, as conviction. on the other (8th 505 F.2d 1079 hand, related offenses committed over 801(d)(2)(E). Fed.R.Evid. In determining Id., 4. The location or accompanying conditions confinement are 6. dence car, that Frol was in the the 1969); Cave v. United 390 F.2d government presented has no direct or (8th Cir.), circumstantial evidence from which the (1968). 20 L.Ed.2d 1365 jury could beyond find a reasonable doubt agreement express need not be or formal that Frol was in actual or constructive may by and be established circumstantial possession of the heroin or passed had evidence. Koolish v. United to observed, Ellison. No transaction was (8th Cir.), 523-524 Ellison was not searched before or after transaction!)] the Id. at 1137. Here, independent the evidence of To establish the Nunn-Holder conspiracy, agreement cooperation or was insufficient government the following offered the evi- jury question to raise a on the issue of (1) dence: Holder distributed heroin on at conspiracy whether a existed between Nunn previous (the least one occasion March aspects and Holder. We think the of the transaction), (2) the purchased heroin on conspiracy, Nunn-Holder govern which the packaged November 18 was identically to establish, ment’s evidence failed to are March, that purchased (3) in Nunn was quite similar to the by reasons relied on the entering apartment observed Holder’s Frol, supra, Court in United States exiting (4) five minutes later and Holder reversing the finding in that stated after his arrest that he lived alone in Frol, government Block, case. agent, apartment. his In our this evi- arranged purchase of heroin through an dence suffers the same flaws observed in

intermediary, Shortly Ellison. after mid the Frol jury only specu- case. The night, bowling the two drove to a alley in late as to who in apartment was Holder’s Minneapolis North where Ellison left evening the of November 18. Holder was proceeded Block’s vehicle and to a white car not entering apartment observed his parked bowling alley parking in the lot. evening. Assuming, that though, jury He to the shortly returned Block’s vehicle concluded that produced grams apart- thereafter and of her Holder was in the ment, oin. Ellison was not searched there was before or no evidence that he was alleged purchase. after the A team evening of nar- alone on that or that he actually heroin OOSTERHOUT, and transferred the VAN possessed Circuit Senior No transaction was observed and Judge, concurring part Nunn. dissenting entering part. was not searched before Nunn Thus, apartment. it was not Holder’s complete I am agreement with the the that Nunn did not have narcotics shown majority opinion with respect to the affirm- person apart- entering before on her ance on Count I. that not made or the transfer was

ment In the judicial discretion, exercise of I individual that apartment another would determine the validity of the Count therefore, conclude, evening. We III conviction and bypass the application of between Nunn Adams conversations the concurrent sentence rule in light and, against upon were inadmissible incomplete record on this issue lack objection, should have been strick- adequate briefing.1 majority opin- the record. en from ion sets fairly out the applicable as law to Count conviction and sets fairly out Finally, we must discuss suffi the facts. One additional fact should be ciency evidence to convict Holder on Agent added. John Boulger, a seasoned reported III in the absence of Nunn’s Drug Agent, Enforcement that the testified reviewing determi statements. cylindrical packages foil were unique guilt, appellate an court nation must heroin, form of packaging he which had the evidence in the most light view favor except never seen purchases made accept, as able and must appellant from the on March 10 and No- established, all reasonable inferences that vember and 18. only Not was the heroin support tend verdict. United packaged in an manner, identical but the Scholle, supra; States States v. United Drug Enforcement Administration Chemist Moss, F.2d 954 United testified that all three exhibits of heroin Harris, analyzed to contain the same adulter- 1137; Frol, supra States v. ant, quinine, dilutants, and the same manni- Rich, supra; tol and lactose. Overshon, (8th Cir.), close, While the issue is I that the believe (1974). Nonetheless, L.Ed.2d we believe evidence when viewed in light most on evidence Count III was insufficient favorable the Government is sufficient to the jury’s to sustain verdict. evidence The establish a conspiracy between Nunn and on that Holder distributed heroin Novem Holder, making thus Nunn’s statements ad- was, essence, ber 18 the same as that missible, and that the evidence is sufficient between used establish to support the conviction on Count III. and Nunn. In our this I affirm would the convictions on Counts probative is no more a distribu I and and not reach the concurrent attempt than it is of a tion or distribute sentence rule. conspiracy to do the same. Without Nunn’s only reported

speculate as to Holder’s involvement reason, we 18 sale. For this

November Count III. verdict on

must reverse affirmed; is judgment I is reversed. judgment on Count III extremely ty might, concurrent an the Parole Board situa- 1. The sentence rule is some tions, busy parole rule and courts much convenient saves defer consideration reason considering upon judicial multiple time in convictions counts which the trial court indictments, many imposed as those fre- count such the exercise its discretion has con- majority practice quently used in mail fraud current sentences. Such Parole cases. Board, exists, validity. opinion possibility not a certain- is indicates a but if of doubtful notes adult offense severi- application ty guidelines. another circumstance in which might adversely the concurrent sentence rule Apparently, affect a defendant. at the federal Id. level, there is no adverse effect. The Sentence Computation published by Manual the Bureau During argument, oral counsel explains length of Prisons that of sentence is application admitted that by aggregate determined or total sentence might concurrent sentence rule in this case not, served and that concurrent sentences do prejudice the defendant under the Board of any way, extend that determination. regulations. Parole’s current (1976) accompanying 5. 28 C.F.R. § severity guidelines offense and salient factor score. 957 evidence, hearsay agents whether to admit the tri cotic observed Frol’s white automo- must be there is judge al satisfied departing bile from his residence at approx- evidence, independent of the substantial imately 1:10 A.M. They followed the vehi- challenged hearsay establishing cle to the bowling alley same where Block conspiracy the existence of between gone. Ellison had Following a brief declarant and the defendant. lapse surveillance, a man matching Elli- 1136; Frol, supra v. at States son’s description was observed walking Rich, supra at 984. “The offense of away from Frol’s car. At approximately consists agreement of an be A.M., 2:00 the white automobile returned to offense, conspirators tween to commit an Frol’s residence. Frol, su- attended an act of one or more of the pra at 1135-1136. conspirators object to effect the of the con The Court foregoing held the Hutchinson, spiracy.” United insufficient to convict Frol of a conspiracy 484, 1973), F.2d to distribute narcotics with Ellison. sub nom. Ennis v. United 417 U.S. reaching conclusion, this the Court stated: (1974), S.Ct. Skillman, quoting from United States only speculate as to who Cir.), might have been in Frol’s car when it L.Ed.2d 63 appeared bowling alley on the Falcone, See United States night question. Moreover, even if the (1940); 85 L.Ed. 128 Kirsch jury could properly infer from the evi- 562, 565(8th v. United baum

Case Details

Case Name: United States v. Frank Holder

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 23, 1977

Citation: 560 F.2d 953

Docket Number: 77-1224

Court Abbreviation: 8th Cir.