United States v. Locklear

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0022p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 08-1180

v.

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Defendant-Appellant. -

HUEL LOCKLEAR,

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Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 04-80170-001—Avern Cohn, District Judge.

Argued: July 27, 2010

Decided and Filed: January 28, 2011

Before: GIBBONS and KETHLEDGE, Circuit Judges; SARGUS, District Judge.*

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COUNSEL

ARGUED: Todd A. Shanker, FEDERAL DEFENDER OFFICE, Detroit, Michigan, for

Appellant. Kathleen Moro Nesi, ASSISTANT UNITED STATES ATTORNEY,

Detroit, Michigan, for Appellee. ON BRIEF: Todd A. Shanker, FEDERAL

DEFENDER OFFICE, Detroit, Michigan, for Appellant. Kathleen Moro Nesi,

ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.

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OPINION

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KETHLEDGE, Circuit Judge. Huel Locklear challenges his convictions and

sentence for bank robbery and being a felon in possession of a firearm. His principal

argument is that the two charges against him were misjoined for trial. We agree with

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The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of

Ohio, sitting by designation.

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that argument. After reviewing the entire record, however, we conclude that the

misjoinder, though regrettable, was harmless. We otherwise reject Locklear’s argument

that his sentence was procedurally unreasonable; but we agree with both parties that

Locklear was denied his right to allocute during his sentencing hearing. We therefore

affirm his convictions, vacate his sentence, and remand the case so that he can allocute

if he chooses.

I.

A.

Around early December 2003, Regina Locklear (no relation to Huel) paid $300

cash for a 1982 Toyota Corolla wagon. Huel disputes many aspects of Regina’s

testimony at trial; but one point he does not specifically dispute is that he gave her the

money for the car and waited at the end of the seller’s driveway while she negotiated the

deal.

That same Toyota was driven to and from the Bank of Lenawee in Adrian,

Michigan, on the morning of Christmas Eve 2003. In between those drives the bank was

robbed. Specifically, at about 9:15 that morning, a man entered the bank, jumped over

the teller counter, and shouted for everyone to get down. The man wore a dark green ski

mask with gray sunglasses beneath the eye openings and a piece of blue fabric pinned

across the mouth opening, a long green trench coat with a camouflage hunting vest over

it, green cargo pants, dark brown gloves, and white sneakers with red trim. Despite the

getup, some of the robber’s skin was exposed; one witness described him as “a tan or a

very light-skinned Mexican American[.]” (Huel and Regina Locklear are Native

Americans.) The robber spoke with a Southern accent. (Huel is from North Carolina.)

He carried a blue cloth bag, into which he stuffed $14,776 from three teller-drawers.

The robber also ordered the tellers to open the bank’s vault, but they told him it was on

a timer, so he fled.

No. 08-1180 United States v. Locklear Page 3

The robber ran out to the Toyota, which then drove off. One witness followed

the Toyota to an apartment complex, but lost sight of it around a bend in the service

drive. A short while later, a light-colored Lincoln Towncar came back around the bend.

Police officers soon arrived and found the vacant Toyota parked at the complex.

Around the car, in the snow, were two sets of footprints leading to an adjacent parking

spot. That spot had tire tracks leading away from it. Over at the bank, officers found a

set of footprints leading to where the getaway car had been. Those footprints matched

one of the sets in the snow around the Toyota at the apartment complex.

From there the trail went cold until January 11, 2004. On that date, the Livonia

police received an anonymous tip that Regina and “Whowell” Locklear had been

involved in a bank robbery, that they were driving a white or silver Lincoln with North

Carolina plates, and that they had recently purchased a black Lincoln Continental as

well. The tip included an address where the couple could be found. Officers went to the

address that evening and pulled over Regina as she drove away in a black Lincoln

Continental. The plates on that car belonged to the silver Lincoln. The officers arrested

Regina on an outstanding warrant. She eventually told them that Huel had robbed the

bank on Christmas Eve and that he had brought a .357 revolver with him in the Toyota

the morning of the robbery. She also said they could find Huel at her mother’s home,

located at 9280 Gilbert Highway in Onsted, Michigan.

That is a rural location. Christopher VanDyke, a Lenawee County deputy sheriff,

drove there just after midnight on January 12. Dispatch told him to be on the lookout

for Huel Locklear, who was armed and dangerous. VanDyke drove down the road with

his lights off, shining a flashlight on the mailbox numbers as he crept along. As

VanDyke approached 9280, he saw a vehicle moving down the driveway towards the

road. At first, VanDyke thought the vehicle belonged to another deputy; but then he saw

that it was a silver Lincoln. VanDyke flipped his spotlight onto the vehicle and saw two

occupants. A “stand-off” ensued: “I wasn’t sure what he was going to do. He wasn’t

sure what I was going to do.” Finally, the Lincoln’s driver opened his door, took a few

No. 08-1180 United States v. Locklear Page 4

steps towards the trunk, and bolted for the woods. No one disputes that the driver was

Huel Locklear.

A SWAT team and a K-9 deputy, Kurt June, soon arrived. June and his tracking

dog began following Locklear’s trail. They ran into difficulty: Locklear had repeatedly

traveled in large circles through the woods and an adjacent swamp, which made it hard

for the dog to tell where Locklear had broken away from the pattern. That, according

to June, was the idea: “He was intentionally trying to throw my dog off.” And Locklear

had sometimes doubled back, so that “we would be tracking along and there would be

nothing, there would be no tracks in the snow, not at all.” After three hours without

success, June gave up the chase.

The following evening—about 17 hours after the search began—a neighbor

called police to report a man looking in her window. It was Locklear. This time the

police found and arrested him.

On January 13—the day after Huel’s arrest—officers obtained a warrant to

search the silver Lincoln that Huel had been driving before he fled. The Lincoln’s

passenger area contained mail addressed to Huel Locklear and a certificate of title to the

1982 Toyota. The Lincoln’s trunk contained the entire ensemble worn by the person

who robbed the Bank of Lenawee: The green ski mask with the blue fabric pinned

across the mouth, the gray sunglasses, the green trench coat, the camouflage vest, the

green pants, the dark brown gloves, and a pair of white Nike sneakers with red trim. The

trunk also contained the robber’s blue laundry bag, a loaded .357 revolver, a loaded .25

caliber pistol (found in a pocket of the trench coat), a loaded .45 caliber pistol, a bolt-

action military rifle, and various types of ammunition, some of it hollow-point.

A Michigan State Police forensic specialist determined that the Nikes “could not

be eliminated as having made” the footprints found around the Toyota and at the bank.

Other testing showed that the blue cloth mouthpiece contained DNA from two persons.

The “primary contributor” was Huel Locklear.

No. 08-1180 United States v. Locklear Page 5

B.

A federal grand jury charged Locklear with bank robbery in violation of

18 U.S.C. § 2113(a). A superseding indictment added a second count of felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1), citing the four firearms

found in the Lincoln’s trunk. Locklear thereafter filed a bare-bones motion for

severance of the two counts, arguing in conclusory terms that the two counts were not

“temporally or logically related.” In response, the government argued that the counts

involved common issues and evidence. Neither party had anything to say about whether

the two counts were related on the face of the indictment. The district court denied

Locklear’s motion, holding that the two counts were related.

A jury thereafter convicted Locklear on both counts. As calculated by the

probation officer, the guidelines range for Locklear’s sentence was 292-365 months’

imprisonment. The district court sentenced Locklear to 292 months. This appeal

followed.

II.

A.

Locklear argues that the bank-robbery and felon-in-possession charges were

misjoined for trial. The rule governing joinder of offenses provides:

The indictment or information may charge a defendant in separate counts

with 2 or more offenses if the offenses charged—whether felonies or

misdemeanors or both—are of the same or similar character, or are based

on the same act or transaction, or are connected with or constitute parts

of a common scheme or plan.

Fed. R. Crim. P. 8(a). We review issues of joinder de novo. United States v. Dietz, 577

F.3d 672, 692 (6th Cir. 2009).

“Whether joinder was proper under Rule 8(a) is determined by the allegations on

the face of the indictment.” United States v. Chavis, 296 F.3d 450, 456 (6th Cir. 2002).

Here, the superseding indictment provides:

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COUNT ONE

( 18 U.S.C. § 2113 (a)— Bank Robbery )

That on or about December 24, 2003, in the Eastern District of Michigan,

Southern Division, the defendant, HUEL LOCKLEAR, by intimidation,

did take from the presence of a bank teller approximately $14,776.00 of

the money belonging to and in the care, custody, control, management

and possession of the Bank of Lenawee County, located at 1701 W.

Maumee, Adrian, Michigan, the deposits of which were then insured by

the Federal Deposit Insurance Corporation, in violation of Title 18,

United States Code, Section 2113(a).

COUNT TWO

( 18 U.S.C. § 922 (g)(1)— Felon In Possession Of A Firearm )

That on or about January 11-13, 2004, in the Eastern District of

Michigan, Southern Division, the defendant, HUEL LOCKLEAR, after

having previously been convicted of at least one crime punishable by

imprisonment for a term exceeding one year (felony offense), did

knowingly and unlawfully possess firearms, that is, a Springfield Armory

model 1911-A1 .45 caliber revolver, bearing serial number N38681O; a

Taurus .357 Magnum revolver, bearing serial number 5185937; a Raven

Arms Model P-25 .25 caliber semi-automatic pistol, bearing serial

number 593855, a Military bolt action M27 7.62 X 54R rifle; said

firearms having previously traveled in interstate commerce, in violation

of Title 18, United States Code, Section 922(g)(1).

Measured by the allegations in the superseding indictment, the offenses described

in these counts are not “of the same or similar character,” or “based on the same act or

transaction,” or “connected with or constitute parts of a common scheme or plan.” Fed.

R. Crim. P. 8(a). One offense occurred on December 23, 2004 and did not involve the

possession of guns. The other occurred nearly three weeks later and involved nothing

but the possession of guns. The indictment otherwise alleges nothing to show that the

two offenses were part of a common plan. Their joinder fails the face-of-the-indictment

test.

The government does not even argue the contrary. Instead, it argues that the test

is inapposite: in its view, “the face of the indictment rule applies to justify joinder, not

No. 08-1180 United States v. Locklear Page 7

to invalidate it.” Gov’t Br. at 15. That proposition may be true in other circuits, but it

is not true in this one. One need look no further than Chavis, in which we applied the

face-of-the-indictment rule to hold that the drug and gun offenses in that case were

misjoined under Rule 8(a). See 296 F.3d at 458. We apply the same rule to reach the

same result here. The offenses in this case were misjoined.

B.

“[A] determination of misjoinder is subject to harmless-error review under Rule

52(a) of the Federal Rules of Criminal Procedure, which permits reversal only for trial

errors that affect substantial rights.” United States v. Cody, 498 F.3d 582, 587 (6th Cir.

2007) (internal quotation marks omitted). To affect a defendant’s substantial rights,

misjoinder must have a “substantial and injurious effect or influence in determining the

jury’s verdict.” United States v. Lane, 474 U.S. 438, 449 (1986) (internal quotation

marks omitted). The Government bears the burden of persuading us that an error is

harmless. Chavis, 296 F.3d at 461.

Here, Locklear argues that, absent misjoinder, the jury that convicted him of bank

robbery would not have known two things: first, that he was a convicted felon (which

of course the jury knew as a result of the felon-in-possession charge); and second, that

he possessed a large cache of weapons and ammunition 19 days after the robbery. These

two facts, Locklear contends, made him appear generally to be a dangerous person, and

specifically to be the sort of person who might rob a bank. Thus, he says, the misjoinder

substantially affected the jury’s verdict on the bank-robbery charge. (He offers no

reason why the misjoinder would have affected the jury’s verdict on the felon-in-

possession charge, and we see none either.)

The government offers three reasons why the joinder’s effect was narrower than

Locklear suggests. First, the government contends that evidence concerning the .357

revolver likely would have been admissible in a separate trial on the bank-robbery

charge, since Regina Locklear testified that Huel brought that gun with him to the bank

(though she said he did not take it inside). We think the government is correct on that

point. The jury would have heard about the .357 even absent the misjoinder.

No. 08-1180 United States v. Locklear Page 8

Second, the government contends that evidence of the two pistols (.25 and .45)

and ammunition would have been admissible as well, since they were found among the

robber’s clothes in the trunk of the silver Lincoln. We disagree: the firearms were found

with the clothes nearly three weeks after the robbery, which attenuates any connection

with it; and the government otherwise offers no explanation as to why the pistols and

ammunition would have been admissible in a robbery-only trial.

Third, the government contends that the prejudicial effect of Locklear’s prior

felony conviction was minimized because the specific crime for which he was previously

convicted (bank robbery) was never revealed to the jury, and because he stipulated to the

fact of his felony status, thereby preventing the jury from hearing testimony about it. We

agree that the prejudicial effect of Locklear’s felony status was limited in these respects.

The net effect of the misjoinder, then, was that the jury that convicted Locklear

of bank robbery knew, first, that he was a felon; and second, that he possessed a total of

four weapons (rather than just the .357) and ammunition 19 days after the robbery.

Absent the misjoinder, the jury would not have known those things. The question

presented is whether that knowledge had a substantial effect on the jury’s finding that

Locklear was guilty of bank robbery.

The answer to that question is no. We have reviewed the entire trial transcript

in this case. And having done so, we hold that the error here was harmless for the same

reason the same error was harmless in both Lane and Chavis: the evidence of the

defendant’s guilt was overwhelming. Here, the witnesses to the Bank of Lenawee

robbery testified very specifically about the items that the robber had worn and carried

during the crime. Those items were distinctive. The witnesses also confirmed that the

items presented to them at trial—the ski mask with the blue patch, the trench coat, the

camouflage vest, the brown gloves, the green cargo pants, the blue bag, etc.—were the

actual items used by the robber. And every one of those items was found in the silver

Lincoln that Locklear was driving just before he bolted for the woods on January 12,

2004. Moreover, the fact of Locklear’s flight, and his remarkable efforts to elude

capture in the woods of Michigan in January, were themselves strong evidence that he

No. 08-1180 United States v. Locklear Page 9

knew full well what lay in the trunk of the Lincoln. That the Lincoln contained Huel’s

mail is additional proof of that knowledge. That the Lincoln also contained the title to

the 1982 Toyota—the getaway car, and a disposable one at that—is further proof that

Huel not only participated in the robbery, but planned it. And then there is the

fact—devastating to the defense—that the blue cloth on the ski mask was loaded with

Locklear’s DNA.

Locklear overlooks all this evidence, arguing instead that the direct evidence of

his guilt—namely, Regina’s testimony—was unreliable. On this record his argument

is ultimately beside the point. True, the evidence recited above is circumstantial; but that

shows only that circumstantial evidence, too, is sometimes overwhelming.

We also disagree with Locklear’s contention that the government exploited the

misjoinder with “an overwhelming overkill of gun and ammunition evidence” at trial.

Def. Reply at 3. The government’s presentation of this evidence was reasonably

succinct and matter-of-fact. Moreover, that Locklear possessed the guns in the Lincoln’s

trunk was hardly disputed at trial; and, as a result, the trial focused not on the gun

evidence, but on the question whether Locklear robbed the bank. The district judge

ensured that the focus remained there. The misjoinder of the counts against Locklear,

given the record in this case, is not grounds for a new trial.

C.

Locklear presents two challenges to his sentence. First, he contends that his

sentence was procedurally unreasonable. Locklear argued in his sentencing

memorandum that he should receive a sentence below the bottom of the guidelines range

because of his age (then 62) and supposed ill-health. During Locklear’s sentencing

hearing, the district court did not address these arguments specifically, but said there was

“nothing in the record to warrant going outside the recommended guideline range,

nothing in the 3553(a) factors.” The court then imposed a sentence at the very bottom

of the guidelines range. Locklear says the court committed procedural error when it

omitted to address his arguments specifically.

No. 08-1180 United States v. Locklear Page 10

We disagree. “Although Congress requires a court to give ‘the reasons’ for its

sentence, 18 U.S.C. § 3553(c), it does not say that the courts must give the reasons for

rejecting any and all arguments by the parties for alternative sentences.” United States

v. Vonner, 516 F.3d 382, 387 (6th Cir. 2008) (en banc). Here, Locklear’s arguments

were directed to the § 3553(a) factors. The district court said that it saw nothing with

respect to those factors that supported a below-guidelines sentence. On this record, that

response, “though brief, was legally sufficient.” Rita v. United States, 551 U.S. 338, 356

(2007). We are satisfied that the district court considered Locklear’s arguments and

had a reasoned basis for rejecting them. See id. at 357.

Locklear also argues that the district court did not give him an opportunity to

allocute at his sentencing hearing, and that the case should be remanded for that purpose.

The government agrees with Locklear on both points. We agree as well. See United

States v. Haygood, 549 F.3d 1049, 1055 (6th. Cir. 2008); Fed. R. Crim. P. 32(i)(4)(A).

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We affirm Locklear’s convictions, vacate his sentence, and remand the case so

that he may allocute if he chooses.