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
*
The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of
Ohio, sitting by designation.
1
No. 08-1180 United States v. Locklear Page 2
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:
No. 08-1180 United States v. Locklear Page 6
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).
* * *
We affirm Locklear’s convictions, vacate his sentence, and remand the case so
that he may allocute if he chooses.