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United States v. Hollingshed

United States Court of Appeals, Eighth Circuit

October 3, 2019

United States of America Plaintiff- Appellee
Paris Hollingshed Defendant-Appellant

          Submitted: October 18, 2018

          Appeal from United States District Court for the Southern District of Iowa - Davenport

          Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.


         Paris Hollingshed was charged with two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He was tried by a jury that convicted him of Count I and acquitted him of Count II. During the trial, the government elicited hearsay testimony from a police detective regarding an eyewitness's photo lineup identification of Hollingshed. The district court[1] admitted the evidence. The eyewitness, who identified Hollingshed, had been designated as one of the government's trial witnesses but never took the stand. Hollingshed's counsel did not object to the detective's testimony that the eyewitness identified Hollingshed from the photo lineup. On appeal, Hollingshed argues that the district court erred in admitting the photo lineup identification in violation of his Sixth Amendment right to confrontation. He also argues the jury's verdict was not supported by sufficient evidence. And, Hollingshed challenges the district court's imposition of domestic violence and anger management treatments as conditions of supervised release. Finally, in supplemental briefing, Hollingshed argues that application of Rehaif v. United States, 139 S.Ct. 2191 (2019), to his case requires vacatur of his conviction or a new trial. We affirm.

         I. Background

         In the spring of 2015, Chavonte Bragg purchased drugs from Hollingshed. During the transaction, Hollingshed carried a .38 caliber revolver. At a later date, Bragg purchased a 9mm handgun and a .45 caliber handgun from Hollingshed. Hollingshed separately delivered the ammunition for the .45 caliber handgun to Bragg in a sock. Bragg was subsequently arrested on weapons and drug charges. When arrested, Bragg possessed the 9mm handgun he says he purchased from Hollingshed. Bragg pleaded guilty to the charges and agreed to cooperate with authorities in this case against Hollingshed. Bragg told police he purchased the handgun from Hollingshed and testified to that fact at trial.[2]

         On August 18, 2015, after receiving two disturbance calls from the same residence in Davenport, Iowa, the Davenport Police Department began looking for a person that a witness at the scene observed with a handgun. According to the witness's description, the suspect wore an orange T-shirt and stood near a white Chevrolet Camaro. The police, while en route to the calls' location, passed and then pursued a white Dodge Challenger. The Challenger bore some resemblance to the reported Camaro. The driver-Hollingshed-wore a red T-shirt. The next day, the eyewitness came to the police station and viewed a photo lineup of possible suspects related to the disturbance calls. The witness identified Hollingshed as the man he had observed with a gun.

         Based on the disturbance call and positive lineup identification, the police obtained a search warrant for Hollingshed's residence. On August 20, 2015, police executed the warrant and found the following: drug trafficking paraphernalia, including inositol (used to make crack cocaine), a small digital scale, a vacuum sealer, a roll of unused vacuum-sealer bags, and a partially cut vacuum sealed bag. The vacuum sealer was dusted for fingerprints. Only Hollingshed's fingerprints were found on the vacuum sealer. In the basement rafters, the police found an empty gun box for a .45 caliber firearm. Officers also found a drawstring bag containing two tube socks and a digital scale outside near the apartment's front basement window and below a bush. One of the socks contained .38 caliber ammunition. The other sock contained a .38 caliber revolver inside a vacuum-sealed bag. According to the government's evidence, the cut line on the partial bag found inside the apartment and the cut line on the vacuum-sealed bag containing the .38 caliber revolver "match[ed] up identically with one another," indicating they originated as one bag. Redacted Tr., Vol. II, at 112, United States v. Hollingshed, No. 3:16-cr-00034 (S.D. Iowa, Oct. 26, 2017), ECF No. 132. The basement window hinges appeared recently used and loose, and the bag was within reaching distance from the basement through the window.

         Based on this evidence, the police arrested Hollingshed for possessing the firearm. While in jail, Hollingshed spoke by phone with his girlfriend, Dedrica Doolin. The call was recorded. During the call, Hollingshed told Doolin that "a person with a gun license can take it," meaning "that someone that has a permit or someone that has a gun license could take the gun, take the charge." Redacted Tr., Vol. III, at 6, United States v. Hollingshed, No. 3:16-cr-00034 (S.D. Iowa, Oct. 26, 2017), ECF No. 133. Thereafter, Doolin told Hollingshed to "tell them it's mine." Id. Later in the call, Hollingshed suggested to Doolin that one of her family members could claim ownership and responsibility for the gun found in the bush.

         Hollingshed was charged with two counts of being a felon in possession, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In Count I, Hollingshed was charged with possessing the .38 caliber revolver recovered from his residence on August 20, 2015. In Count II, Hollingshed was charged with possessing the 9mm handgun that he sold to Bragg sometime between February 1, 2015, and April 22, 2015.

         During trial, Doolin testified that she owned the .38 caliber revolver. Doolin said that she put the vacuum-sealed gun with no ammunition outside of her back basement window. According to Doolin, she put the ammunition that she had obtained with the gun in a junk drawer at her mother's house and not outside the window. In rebuttal, the government introduced Hollingshed's recorded conversation with Doolin. Contrary to Doolin's testimony, when officers discovered the gun, it was located outside the front basement window, and the ammunition was located in a box inside of a sock outside that window.

         Also at trial, Detective Bryan Butt of the Davenport Police Department testified about the disturbance calls that led to officers' discovery of Hollingshed. Hollingshed's counsel cross-examined Detective Butt about who made the disturbance calls and what information the callers provided. Counsel showed Detective Butt the dispatch log to refresh his recollection. Counsel then questioned Detective Butt about talking to the eyewitness the following day to clarify the description of the person that possessed the gun. During this line of questioning, counsel pointed out inconsistencies between the eyewitness's statement and the officers' observations of Hollingshed.

         On redirect examination, the government moved to admit the dispatch log and photo lineup into evidence. The photo lineup included the eyewitness's initials and the date by Hollingshed's picture. Hollingshed's counsel responded, "No objection." Redacted Tr., Vol. II, at 63. In response to questioning, Detective Butt identified Hollingshed as the individual that the eyewitness identified from the photo lineup. Hollingshed's counsel apparently planned to cross-examine the eyewitness about the accuracy and reliability of his identification later during the trial. At the time, counsel expected the eyewitness to testify because he appeared on the government's witness list. As it turned out, the government did not call the eyewitness. The jury ultimately convicted Hollingshed on Count I for possessing the .38 caliber revolver.

         II. Discussion

         In his opening appellate brief, Hollingshed raises three points. First, he argues the district court plainly erred by admitting the government's eyewitness photo lineup identification through Detective Butt's redirect testimony because the eyewitness did not testify at trial. That identification, Hollingshed says, is testimonial hearsay that violates his Sixth Amendment right to confrontation and is therefore reversible error. Second, Hollingshed contends that the jury's verdict rests on insufficient evidence. And third, as to sentencing, Hollingshed argues the ...

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