Submitted: October 18, 2018
from United States District Court for the Southern District
of Iowa - Davenport
SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
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 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.
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
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.
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
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.
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.
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
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.
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.
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 ...