United States v. Tolliver ( 1995 )

UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 93-3873
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
SYLVESTER TOLLIVER, GERALD ELWOOD,
DANIELLE BERNARD METZ, GENNERO ARTHUR, NOAH MOORE, JR.,
MARLO HELMSTETTER, GLENN METZ, and SHANE STERLING,
Defendants-Appellants.
******************************************************
_____________________________________
No. 93-3877
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
NOAH MOORE, JR.
Defendant-Appellant.
______________________________________________________
Appeals from the United States District Court
for the Eastern District of Texas
______________________________________________________
(August 14, 1995)
Before LAY1, DUHÉ, and DeMOSS, Circuit Judges.
DUHÉ, Circuit Judge:
1
Circuit Judge, of the Eighth Circuit, sitting by
designation.
After a three week jury trial, including the testimony of
over 100 witnesses, Appellants Glenn Metz, Danielle Bernard Metz,
Noah Moore, Jr. (Moore), Gerald Elwood (Elwood), Gennero Arthur
(Arthur), Marlo Helmstetter (Helmstetter), Sylvester Tolliver
(Tolliver) and Shane Sterling (Sterling) (collectively
Appellants) were convicted of conspiring, from 1985 to August 9,
1992, to possess cocaine with the intent to distribute (count
one). Appellants Glenn Metz and Danielle Metz were convicted of
conducting a Continuing Criminal Enterprise (CCE) (counts two and
three). Glenn Metz (counts four and five) and Danielle Metz
(count five) were convicted of possession with intent to
distribute cocaine. Appellants Tolliver and Danielle Metz were
convicted on one count of money laundering (count six).
Appellants Elwood and Helmstetter (counts nine, ten and eleven),
and Arthur (counts seven, nine, ten and eleven) were convicted of
committing murder and other violent crimes in aid of racketeering
activity. Finally, all Appellants, except Danielle Metz and
Tolliver, were convicted of carrying and using a firearm in aid
of drug trafficking.2
In this consolidated appeal, Appellants allege numerous
errors at trial and other errors allegedly arising from their
conviction and sentencing. For the reasons set forth below, we
2
Arthur (count thirteen), Glenn Metz (count fourteen),
Helmstetter (count fifteen), Elwood (counts sixteen and
seventeen), Sterling (counts twenty, twenty-one and twenty-two)
and Moore (count twenty-two).
2
affirm in part, vacate in part, dismiss in part and remand in
part for resentencing.
I. BACKGROUND
Appellants were charged in a twenty-two count indictment
with various charges arising from a narcotics conspiracy based in
New Orleans, Louisiana. From 1985 to mid-1992, Appellants
conspired to, and in fact did distribute approximately 1000
kilograms of cocaine in the New Orleans metropolitan area and, in
furtherance of the conspiracy, committed murders, attempted
murders and other violent crimes. Appellant Glenn Metz, aided by
his wife Danielle Metz, was the main organizer, supervisor and
manager of a group of individuals known as the "Metz
Organization." The positions occupied by the other conspirators
included, inter alia, "cocaine distributor" (Glenn Metz, Danielle
Metz, Moore and Sterling); "payment collector;" "cocaine and cash
courier" (Danielle Metz and Tolliver); "gunman and enforcer"
(Arthur, Elwood and Helmstetter); and "firearms procurer and
storer" (Glenn Metz, Arthur, Elwood, Helmstetter, Moore and
Sterling). Specific facts regarding the conspiracy will be
enumerated as necessary to aid in our analysis.
II. PRE-TRIAL ISSUES
A. Motion to Suppress
Appellant Helmstetter asserts that his Fourth Amendment
rights were violated when officers seized certain letters he sent
to Appellant Elwood, and asks us to overturn the district court's
denial of his motion to suppress.
3
1. Standard of Review
"We consider the evidence in the light most favorable to the
prevailing party when we review the granting of a motion to
suppress. The district court's factual findings are accepted
unless they are clearly erroneous. Questions of law are reviewed
de novo.". United States v. Richard, 994 F.2d 244, 247 (5th Cir.
1993).
2. Analysis
The district court found that Helmstetter lacked standing to
challenge the search because seven of the eight letters were
discovered and seized pursuant to a search warrant executed at
Appellant Elwood's residence. The court further found that
Helmstetter was incarcerated at the time of the search and "made
no showing that he had a legitimate expectation of privacy as to
these letters that were taken from Elwood's residence." The
motion to suppress was denied as to the final letter because
"that letter itself was the subject of a search warrant...and
Defendant has made no showing that the warrant in question was
defective in any way."
Helmstetter had no expectation of privacy once the letters
were received by Elwood. Appellant cites United States v.
Pierce3 and United States v. Koenig,4 for the proposition that,
as the sender of letters via United States mail, he had a
3
959 F.2d 1297, 1303 (5th Cir. 1992), cert. denied, 113 S.Ct.
621 (1992).
4
856 F.2d 843, 846 (7th Cir. 1988).
4
legitimate expectation of privacy in their contents. Appellant,
however, ignores the fact that the letters were not in transit
when seized. In fact, the letters had been received, opened and
presumably read by Elwood. Helmstetter has failed to show that
he had any expectation of privacy once the letters left the
custody of the United States Post Office, and were received by
their intended recipient.5
B. Reciprocal Discovery and Abuse of Grand Jury Process
Appellant Arthur contends that the district court abused its
discretion by compelling him to engage in reciprocal discovery
with the government, and that, as a result, the government came
into possession of certain documents pertaining to his alibi
defense. According to Arthur, the government was not entitled to
discover these documents because it failed to request notice of
any alibi defense in accordance with Fed. R. Crim. P. 12.1.
Arthur further contends the government used this information--
that allegedly substantiated an alibi to the government's
allegation that he participated in the crimes referred to as the
Earhart murders--to subpoena certain witnesses before the grand
jury, and thereby abused the grand jury process.
1. Reciprocal Discovery
5
Cf. United States v. Jenkins, 46 F.3d 447, 456 (5th Cir.
1995)("[I]t was patently unreasonable for Appellees to have any
expectation of privacy vis-a-vis Boyd [the intended recipient of
the videotapes]. He had unlimited access to the videotapes,
absolute dominion and control over the videotapes and no direct
supervision, or indeed any fellow employees in the geographic
vicinity.").
5
"We review discovery rulings for abuse of discretion and
will order a new trial only where a party demonstrates prejudice
to his substantial rights." United States v. Deisch, 20 F.3d
139, 154 (5th Cir. 1994). Fed. R. Crim. P. 16(b)(1)(A) provides
in relevant part,
If the defendant requests disclosure under subdivision
(a)(1)(C) or (D) of this rule, upon compliance by the
government, the defendant, on request of the
government, shall permit the government to inspect and
copy or photograph books, papers, documents...which are
within the possession, custody, or control of the
defendant and which the defendant intends to introduce
as evidence in chief at the trial.
There is no dispute that Arthur requested and accepted discovery
from the government under the initial indictment. However, it is
also plain that the government did not request reciprocal
discovery until after the superseding indictment had been issued.
Arthur contends that, for Rule 16 purposes, a superseding
indictment cuts off any right the government may have had to
reciprocal discovery under the initial indictment. Under this
theory, because he did not request further discovery from the
government under the superseding indictment, he had no obligation
to provide the reciprocal discovery requested. This appears to
be a matter of first impression, but can be easily disposed.
Rule 16 provides no support for Arthur's contention. In
fact, Rule 16 creates a duty of continuing disclosure. See Fed.
R. Crim. P. 16(c). The district court found that the government
satisfied its burden by supplying all defense counsel with lists
of tapes and exhibits...pursuant to both the original Indictment
and the Superseding Indictment." Appellant does not deny that he
6
accepted discovery from the government, and we see no reason to
distinguish between the indictment and the superseding indictment
for purposes of the reciprocal discovery requirement.
2. Abuse of Grand Jury Process
"The law is well settled in this circuit that while the
Government may not use the grand jury in place of discovery for
the purpose of preparing a pending indictment for trial, it may
continue with an investigation." United States v. Ruppel, 666
F.2d 261, 268-69 (5th Cir. 1982), cert. denied, 458 U.S. 1107,
102 S.Ct. 3487 (1982). The grand jury process is entitled to a
presumption of regularity which is not easily overcome. See e.g.
Beverly v. United States, 468 F.2d 732, 743 (5th Cir. 1972). In
the instant case, it is plain that there was no abuse of the
grand jury process. As set out by the government, "it appeared
that appellant Arthur intended to use documents from the Seattle
Travelers Aid Society that appeared to have been fraudulently
altered to support his alibi defense to the Earhart Expressway
shootings...the grand jury was investigating whether the
documents were false or had been altered, and, if so was
endeavoring to determine the identities of the culpable persons."
Clearly, in a conspiracy of the size and scope of the one
indicted herein, the grand jury could be expected to follow up on
evidence which tended to implicate additional co-conspirators or
indicate that additional crimes had occurred. Arthur has made no
showing that the grand jury's inquiry was not part of a
7
legitimate investigation into a possible additional crime, nor
has Arthur shown that he was prejudiced by the investigation.
Arthur was able to present his alibi defense at trial. In
addition, the primary focus of the government's impeachment of
his alibi--the alteration of the documents--was evident on the
face of the documents, and therefore readily discoverable without
grand jury process. The grand jury investigation only sought
information on a putative crime which came to light during the
discovery process, it was not used as a substitute for discovery.
Arthur falls well short of the burden necessary to rebut the
grand jury's presumption of regularity. The district court's
ruling was not clearly erroneous.
C. Prejudice from Joint Trial
For the first time on appeal, Appellant Helmstetter contends
that he was deprived of a fair trial because he was tried with
the other defendants. The Federal Rules of Criminal Procedure
require that "requests for a severance of charges or defendants
under Rule 14" must be raised prior to trial. Fed. R. Crim. P.
12(b)(5). "Failure by a party to...make requests which must be
made prior to trial...shall constitute waiver thereof, but the
court for cause shown may grant relief from the waiver." Fed. R.
Crim. P. 12(f).6 Helmstetter has not shown any cause for his
6
We note that some courts have conducted reviews for plain
error where Rule 12(f) waiver has occurred. See United States v.
Nuñez, 19 F.3d 719, 723 n. 10 (1st Cir. 1994). While we do not
decide whether the language of Rule 12(f) mandates such a review,
Helmstetter has failed to show "plain error" as that term is
defined in this circuit. See United States v. Calverley, 37 F.3d
160 (5th Cir. 1994)(en banc).
8
failure to request a severance prior to trial, and therefore we
need not address the merits of his argument.7
D. Trial of Moore as an Adult
Appellant Moore insists that the provisions of the Juvenile
Delinquency Act8 (JDA) deprived the district court of
jurisdiction over him, or, in the alternative, that the district
court failed to instruct the jury that conduct prior to Moore's
eighteenth birthday could not be used to assess his guilt.
Appellant failed to raise these issues below, so our review is
for plain error. See United States v. Calverley, 37 F.3d at 162.
However, to the extent that Moore's contentions are
jurisdictional, they may be raised at any time. See, Fed. R.
Crim. P. 12(b)(2). Whether a defendant can be tried for a
7
Helmstetter relies on United States v. Washington, 550 F.2d
320, 328 (5th Cir. 1977), cert. denied, 434 U.S. 832, 98 S.Ct.
116 (1977), for the proposition that an appellant who fails to
request a severance "either before or during the trial...must
demonstrate actual prejudice resulting from the failure to sever
his trial from that of his co-defendant." Id. at 328. Although
Rule 14(f) was extant at the time Washington was decided, we
neither mentioned, nor applied the plain language of the rule
therein. However, even if we were to address the merits of
Helmstetter's claim under the Washington standard, he has failed
to prove actual prejudice. As stated in Washington, "[t]he law
in this circuit is clear that ``[a] defendant cannot claim
prejudice from failure to sever merely because his likelihood of
acquittal is not as great in a joint trial as in a separate
trial.'" Washington, 550 F.2d at 328. If any prejudice resulted
from the joint trial, it was ameliorated by the trial judge's
instruction to the jury to assess the guilt of each defendant
separately. See United States v. Bermea, 30 F.3d 1539, 1572
(5th Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1113(1995)("Any prejudice created by a joint trial can generally be
cured through careful jury instructions.").
8
18 U.S.C. §§ 5031-5042.
9
conspiracy which existed prior to his eighteenth birthday is a
matter of first impression in this circuit.
The JDA requires the Attorney General to certify that "there
is a substantial Federal interest in the case or the offense to
warrant the exercise of Federal jurisdiction," and that one of
three factors is satisfied before proceeding against any
juvenile9 in federal court. 18 U.S.C. § 5032. This
certification requirement is jurisdictional, and a juvenile may
not be prosecuted in federal court absent certification. Id.;
see also United States v. Wong, 40 F.3d 1347, 1363 (2nd Cir.
1994), cert. denied, 63 U.S.L.W. 3873 (1995). Moore became
involved in the instant conspiracy before his eighteenth
birthday,10 but was indicted after his eighteenth birthday.11
Moore contends that because the majority of his involvement in
the conspiracy occurred before his eighteenth birthday, absent
Attorney General certification the district court was without
9
"Juvenile" is defined at 18 U.S.C. § 5031 as,
[A] person who has not attained his eighteenth
birthday, or for the purpose of proceedings and
disposition under this chapter for an alleged act of
juvenile delinquency, a person who has not attained his
twenty-first birthday, and "juvenile delinquency" is
the violation of a law of the United States committed
by a person prior to his eighteenth birthday which
would have been a crime if committed by an adult or a
violation by such a person of section 922(x).
10
Moore turned 18 on October 3, 1990.
11
Moore was originally indicted on August 7, 1992, the
superseding indictment was returned on May 14, 1993.
10
subject matter jurisdiction over him. Moore's assertion is
unavailing.
Although the crime of conspiracy is "complete" at the moment
the deal is struck, it is a continuing crime.
It is well established that federal courts have
jurisdiction over conspiracies begun while a defendant
was a minor but completed after his eighteenth
birthday. "The [JDA] does not...prevent an adult
criminal defendant from being tried as an adult simply
because he first became embroiled in the conspiracy
with which he is charged while still a minor...."
United States v. Wong, 40 F.3d at 1365 (quoting United States v.
Spoone, 741 F.2d 680, 687 (4th Cir. 1984)); United States v.
Doerr, 886 F.2d 944, 969 (7th Cir. 1989)("[T]he protections of
the Juvenile Delinquency Act are designed ``to guarantee certain
basic rights to juveniles who come within Federal jurisdiction.'
Thus the protections of the Act are not applicable to a
defendant...who is not a juvenile and has not committed an act of
juvenile delinquency."). However, for the defendant to be
charged with a conspiracy that transcends his eighteenth
birthday, he must do something to ratify his involvement in the
conspiracy after he reaches the age of majority. See United
States v. Maddox, 944 F.2d 1223, 1233 (6th Cir. 1991), cert.
denied, 502 U.S. 992, 112 S.Ct. 610 (1991),
[A]n eighteen year-old who continues to participate in
a conspiracy after his eighteenth birthday commits an
act in violation of law after his birthday. We do not
believe, however, that a person who does absolutely
nothing to further the conspiracy or to reaffirm
membership in it after his eighteenth birthday can be
held criminally liable as an adult in federal court.
11
The majority rule, that we now adopt, is that after he turns 18,
a defendant may be tried for a conspiracy which temporally
overlaps his eighteenth birthday--if the government can show that
the defendant ratified his involvement in the conspiracy after
reaching majority. We must determine whether there is sufficient
evidence to show Moore's ratification of the conspiracy after his
eighteenth birthday.
After conducting a thorough review of the record, we find
that there was sufficient evidence for the jury to conclude Moore
ratified his involvement in the conspiracy after his eighteenth
birthday. The government adduced numerous post-October 3, 1990
transcripts of intercepted telephone conversations between Moore
and several co-conspirators wherein Moore made obvious references
to, and provided instructions regarding the sale of drugs and the
handling of proceeds from drug crimes. Moore was also
intercepted telling both Danielle and Glen Metz that he had been
chased by several persons, and asked both of them to procure a
firearm for his protection. In addition, during the August 9,
1992 execution of a search warrant at the apartment he shared
with co-conspirator Sterling, a handgun, ammunition and a
notebook containing records of drug transactions were found in
his bedroom. Not only is the post-eighteenth birthday evidence
sufficient to establish ratification of the conspiracy, but,
standing alone, this evidence was sufficient for the jury to find
Moore guilty of the Count I conspiracy.
12
The circuits are split on whether the district court must
instruct the jury to disregard evidence of pre-eighteen conduct
when assessing guilt.12 However, because we find that the post-
12
Compare United States v. Maddox, 944 F.2d at 1233,
[T]he government must make a threshold demonstration
that the defendant who joined a conspiracy prior to his
eighteenth birthday "ratified" his membership in that
conspiracy after his eighteenth birthday. He cannot be
held liable for pre-eighteen conduct, but such conduct
can, of course, be relevant to put post-eighteen
actions in proper context.
and United States v. Spoone, 741 F.2d 680, 687 (4th Cir. 1984),
cert. denied, 496 U.S. 1162, 105 S.Ct. 917 (1985),
The jury was entitled to assess this testimony in light
of other evidence showing that Rusty had known of the
auto theft scheme since its inception. There is simply
no basis to believe that the jury convicted Rusty of
conspiracy solely because of his pre-eighteenth
birthday activity, for the trial court repeatedly
instructed the jury that it could not consider the
juvenile acts as evidence of Rusty's guilt.
(citations omitted); with United States v. Wong, 40 F.3d at 1368,
We conclude that the defendant's age at the time the
substantive RICO or RICO conspiracy offense is
completed is the relevant age for purposes of the JDA,
and that an adult defendant may properly be held liable
under RICO for predicate offenses committed as a
juvenile.
and United States v. Doerr, 886 F.2d at 969-70,
The district court did not err in refusing to give the
requested instruction. Contrary to Dale Doerr's
assertion, the Fourth Circuit in Spoone did not
explicitly "approve" an instruction of the type he
requested.
M M M M
[O]nce it is established that certain acts of the
charged offense occurred after the defendant's
eighteenth birthday, it is appropriate for the entire
case to be tried in adult court, in accordance with the
13
eighteenth birthday evidence was sufficient to support the jury's
verdict, Moore cannot show that the omission of the jury
instruction affected his substantial rights, and therefore cannot
establish "plain error."13
E. Brady Material
Helmstetter argues that the government violated his rights
under Brady by failing to disclose certain documents created by
Detective Dennis Thornton of the Jefferson Parish Sheriff's
Office (JPSO) in connection with his investigation of the Earhart
Expressway shootings. The district court, pursuant to a subpoena
issued by another Appellant which the government subsequently
moved to quash, examined the entire JPSO file, determined that
there was not any Brady material therein, and concluded that
"Defendant was not entitled these documents which were part of an
on-going criminal investigation."
adult rules of procedure and evidence. The court in
Cruz therefore held that, once sufficient evidence has
been introduced to allow a jury reasonably to conclude
that a defendant's participation in a conspiracy
continued after the defendant reached the age of
eighteen, then the defendant may be tried as an adult.
Moreover, at the adult trial, the government's
introduction of evidence is to be limited only by the
Federal Rules of Evidence.
(citations omitted); and United States v. Cruz, 805 F.2d 1464,
1476 (11th Cir. 1986), cert. denied, 481 U.S. 1006, 107 S.Ct.
1631 (1987)(same).
13
See United States v. Calverley, 37 F.3d at 164 ("Finally to
be reviewable under this [plain error] standard an obvious legal
error must affect substantial rights. Olano counsels that in
most cases the affecting of substantial rights requires that the
error be prejudicial; it must affect the outcome of the
proceeding.").
14
The Supreme Court has recently restated the standard for
consideration of a Brady claim. See Kyles v. Whitley, 115 S.Ct.
1555 (1995).
Bagley held that regardless of request, favorable
evidence is material, and constitutional error results
from its suppression by the government, "if there is a
reasonable probability that, had the evidence bee
disclosed to the defense, the result of the proceeding
would have been different."
Id. at 1565.
Bagley's touchstone of materiality is a "reasonable
probability" of a different result, and the adjective
is important. The question is not whether the
defendant would more likely than not have received a
different verdict with the evidence, but whether in its
absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence. A
"reasonable probability" of a different result is
accordingly shown when the Government's evidentiary
suppression "undermines confidence in the outcome of
the trial."
Id. at 1566. Appellant need not show that "after discounting the
inculpatory evidence in light of the undisclosed evidence, there
would not have been enough left to convict," nor is a harmless
error analysis applicable once a Bagley error is found. Id.Finally, we are compelled to consider the suppressed evidence
"collectively, not item-by-item." Id. at 1567.
We have reviewed the report that Helmstetter contends should
have been disclosed, and, like the district court, find no Brady
material therein. However, even if we were to find that the
report tended to exculpate Helmstetter, the exculpatory evidence
contained therein was of such an ineffectual nature that it
cannot be considered "material" as that term is defined in Kyles
v. Whitley. In terms of the Kyles analysis, we find the failure
15
to disclose the report in no way undermined confidence in the
verdict.
III. JURY SELECTION
A. Voir Dire Regarding Pre-trial Publicity
Glenn Metz and Helmstetter claim that they were denied a
fair trial because of "massive" pre-trial publicity, and that the
district court failed to conduct adequate voir dire to ascertain
whether the jury was truly fair and impartial. We review under
the standard of United States v. Chagra, 669 F.2d 241, 249-50
(5th Cir. 1982), cert. denied, 459 U.S. 846, overruled on other
grounds, Garrett v. United States, 471 U.S. 773 (1985). Neither
Appellant presents evidence of actual prejudice attributable to
the publicity so we need not address the first Chagra factor.
Only 21 of 86 prospective jurors had any knowledge of the case
due to pre-trial publicity, and not one of the 21 actually served
so the remaining Chagra factors are not satisfied. The district
court's voir dire was clearly adequate to insure an untainted
jury.
B. Batson Challenge
Tolliver and Helmstetter, both of whom are black, contend
that the government used six preemptory challenges to exclude
five prospective black jurors and one black alternate for
racially discriminatory reasons.
1. Standard of Review
16
An allegation of racial discrimination contrary to the
holding of Batson v. Kentucky14 mandates a three stage inquiry.
(1) The defendant establishes a prima facie case by
raising an inference that the prosecution struck
potential jurors solely because of race; (2) The burden
then shifts to the prosecution to articulate
legitimate, clear, and reasonably specific explanations
for each of the challenged strikes. At this stage, the
prosecution need only give a facially valid
explanation; (3) At the third stage, the trial court
determines whether the defendant has proven purposeful
discrimination. The appellate court reviews this
finding for clear error, giving great deference to the
trial court's finding that the prosecutor's explanation
was credible.
United States v. Wallace, 32 F.3d 921, 925 (5th Cir. 1994)
(citations omitted).
2. Analysis
After jury selection, Appellant Danielle Metz, on behalf of
all the defendants, raised the Batson issue by requesting that
the court inquire into the government's reasons for exercising
five of its twelve preemptory challenges to excuse black jurors.
The government offered the following explanations: 1) The first
venireman excused was "an older woman and appeared disinterested
and was not paying attention....Because of her long term
employment as school cafeteria worker we thought she might be
overly sympathetic to young defendants;" 2) The second
venireman was excused because of potential antagonism to the
government stemming from a "convict[ion] of a simple battery
about twenty-five years ago. He said at that time he was not
treated fairly by the justice system;" 3) The third venireman
14
476 U.S. 79, 86, 106 S.Ct. 1712, 1717 (1986).
17
was excused because of employment with a cellular telephone
company. "From experience [the government] felt that many of
those businesses are dependent on drug dealers as
customers....Those companies are often aware that these
individuals are getting the phones, and payments are often made
in cash and they continue to do business with them and even
encourage that business;" 4) The fourth venireman was excused
because "her brother was convicted of murder....We felt this
would tend to make her more sympathetic to defendants who might
be charged in those counts involving homicides and antagonistic
toward the government." In addition, the juror had read several
articles pertaining to the alleged crimes; 5) The fifth
venireman excused "also appeared somewhat disinterested." In
addition, "she lived on Cambronne Street which is the area where
the government witness Lewis Gibbs resides. A lot of the
activity of the Metz organization took place in this area. A
number of individuals who reside there will come up during the
course of the trial;" 6) The sixth venireman was excused
because she "indicated that her sister had recently been arrested
for narcotics charge [sic] and we felt this would make her
antagonistic toward the government."
Each reason asserted by the government is a facially
legitimate and non-discriminatory reason for excusing the
referenced juror. Appellants made no further assertions of
discrimination, and did not challenge any of the reasons stated
by the government. There was no clear error.
18
IV. ISSUES AT TRIAL
A. Exclusion of Pre-surgery Statements
1. Statement of Wilfred Carr
Helmstetter and Arthur contend that they were denied their
Sixth Amendment rights to compulsory process and confrontation by
the exclusion of Wilfred Carr's pre-surgery statement. Carr was
shot during the Earhart expressway murders. At the hospital,
while waiting on a gurney outside the operating room, Carr was
interviewed by JPSO Detective Dennis Thornton. The transcript of
the recorded interview sets forth, in relevant part,
Q: And you drove from the Phoenix [Bar] down Earhart?
A: Ah! huh (positive response)
Q: What part of Earhart, did you get to Clearview yet?
A: No, sir.
Q: Okay you passed Hickory though, right?
A: (inaudible)
Q: What lane were you in Wilfred, you remember
A: Ah! Ah! (negative response)
Q: The bullets came through the door?
A: Yea.
Q: Did you see what kind of vehicle it was?
A: No.
Q: Did it come by slow?
A: Fast.
Q: Fast! Was it speeding?
A: Ah! huh (positive response)
Q: Could you see if it was a car or a truck?
A: I couldn't tell.
Q: Can you think of anything else now Wilfred?
A: Ah! Ah! (negative response)
19
Carr testified that he did not remember talking to anyone at the
hospital the night of the shooting. He did, however, testify
that after the shooting had stopped, he looked up and saw
Helmstetter and Arthur, each armed with an AK-47, hanging out of
the window of a black Ford Taurus station wagon. No attempt was
made to impeach Carr with his prior statement.
During the Defendant's case, on direct examination of
Detective Thornton, Helmstetter, without explanation or
foundation, attempted to introduce the transcript of the Carr
interview. The government lodged a hearsay objection to the
introduction of the transcript on the ground that, due to Carr's
medical condition, the statement lacked reliability. Helmstetter
asserted that he was attempting to introduce the report to rebut
Carr's testimony that he was not interviewed on the night of the
shooting. The government offered to stipulate that Carr was
interviewed by Detective Thornton on the night of the shooting,
but the stipulation was rejected by defense counsel.15
Helmstetter and Arthur now assert four grounds upon which
they contend the trial court should have admitted the statement.
Appellants' assert that it constituted a "prior inconsistent
statement" (Fed. R. Evid. 613); an "excited utterance," (Fed. R.
Evid. 803(2)); "dying declaration," (Fed. R. Evid. 804(b)(2)) and
that the district court acted inconsistently by admitting the
15
In fact, the court asked Detective Thornton, in the presence
of the jury, whether he had interviewed Carr on the night of the
shooting. Thornton responded affirmatively, and stated that he
had interviewed Carr while he was awaiting surgery.
20
pre-surgery statement of Appellant Elwood, but excluding the pre-
surgery statement of Carr.
a. prior inconsistent statement
As we have stated previously,
It is hornbook law that evidence of prior
inconsistent statements of a witness may be admitted to
impeach that witness. The prior statements may have
been oral and unsworn, and "the making of the previous
statements may be drawn out in cross-examination of the
witness, or if on cross-examination the witness had
denied making the statement, or has failed to remember
it, the making of the statement may be proved by
another witness."
United States v. Sisto, 534 F.2d 616, 622 (5th Cir. 1976).
However, while Appellants might have been permitted to question
Detective Thornton on whether he interviewed Carr on the night of
the shooting, no foundation was laid during the cross-examination
of Carr which would have permitted inquiry into the substance of
the statement. Therefore, absent a hearsay exception, the
substance of the statement was not admissible during the
examination of Detective Thornton.
b. hearsay exceptions
Appellants second and third reasons were never presented to
the trial judge, and therefore can be reviewed only for plain
error. On the basis of the record, the statement falls under
neither the "excited utterance" nor "dying declaration"16
exceptions to the hearsay rule.
c. consistency between trial court's rulings
16
The dying declaration exception is applicable where the
witness is unable to testify, and therefore inapplicable to this
case. See Fed. R. Evid. 804(b)(2).
21
Appellants' final argument is also easily disposed because
Appellants have failed to show inconsistency in the district
court's evidentiary rulings. First, Elwood's statement, by
definition, is an admission of a party opponent, and therefore
not hearsay. Fed. R. Evid. 801(d)(2). Second, even if Elwood's
statement could be considered hearsay, no objection was ever made
to its admission.
2. Ulyes White
Helmstetter also argues that the pre-surgery statement of
Ulyes White, another victim of the Earhart Expressway shootings,
was improperly excluded. Appellant sought admission of the
transcript of the recorded statement immediately prior to seeking
admission of the Carr transcript. The district court excluded
the White transcript for the same reasons that the Carr
transcript was excluded, and we affirm the district court on
largely the same grounds.
Helmstetter asserts that the statement was admissible as
either a dying declaration17 or an excited utterance. However,
neither of these exceptions to the hearsay rule was voiced at
trial, and, as a result, we have no foundation for determining
whether the necessary requisites of either exception was met.
For example, we do not know the extent of White's wounds, and
therefore do not know whether he spoke with belief of impending
death. See Fed. R. Evid. 804(b)(2). In fact, the evidence
17
Unlike Carr, White died prior to trial of causes unrelated
to the Earhart shootings, and was therefore unavailable.
22
suggests the contrary, because Carr testified that White was able
to run for help after the shooting. Neither do we know whether
White was still under the "stress of excitement" caused by the
shooting at the time of the interview. See Fed. R. Evid. 803(2).
B. Mid-Trial Publicity
Glenn Metz argues that the district court erred by denying a
motion for mistrial based on mid-trial publicity. A two-step
inquiry is necessary to assess whether voir dire is necessary
because of mid-trial publicity.
A court must first look at that nature of the news
material in question to determine whether it is
innately prejudicial; factors such as the timing of the
media coverage and its possible effects on legal
defenses are to be considered. Second, the court must
ascertain the likelihood that the publicity has in fact
reached the jury. The prominence of the coverage and
the nature and number of warnings against viewing the
coverage become relevant at this stage of the inquiry.
United States v. Manzella, 782 F.2d 533, 542 (5th Cir. 1986),
cert. denied, 476 U.S. 1123, 106 S.Ct. 1991 (1986)(citations
omitted). However, "[t]he trial judge has broad discretion in
ruling on the issue of prejudice resulting from a jury's exposure
to news articles concerning a trial." United States v. Aragon,
962 F.2d 439, 443 (5th Cir. 1992). "It is for the trial judge to
decide at the threshold whether news accounts are actually
prejudicial; whether the jurors were probably exposed to the
publicity and whether jurors would be sufficiently influenced by
bench instructions alone to disregard the publicity." Gordon v.
United States, 438 F.2d 858, 873 (5th Cir. 1971), cert. denied,
404 U.S. 828, 92 S.Ct. 139 (1971).
23
On the second day of trial, Appellant Arthur requested a
mistrial on behalf of all defendants, due to television and
newspaper coverage of the first day of trial. The district court
denied the motion stating, "I am aware of what publicity there
was on the case yesterday. I am aware what was in the paper this
morning. I am aware what was on television....I am convinced
that at this time there is no reason to grant a mistrial for
there is no suggestion that the jury has been influenced by
public publicity." No Appellant requested that the court conduct
voir dire regarding the publicity.
The government contends, and Glen Metz does not dispute,
that the publicity complained of was basically an accurate
portrayal of opening argument and of the testimony at the first
day of trial. Therefore, Appellant has failed to show that the
publicity was "innately prejudicial." Second, unlike the
authority relied upon by the Appellant, the district court herein
strongly and consistently admonished the jury to avoid any press
coverage of the trial.18 After jury selection, the court
admonished the jury,
Now, during the course of the trial you will
receive all the evidence you may properly consider to
18
Compare United States v. Herring, 568 F.2d 1099, 1104 (5th
Cir. 1978)(Instruction cautioning jury to "not pay attention to
anything outside the courtroom" inadequate to prevent prejudice)
with United States v. Arzola-Amaya, 867 F.2d 1504, 1514 (5th Cir.
1989), cert. denied, 493 U.S. 933, 110 S.Ct. 322(1989)(Instruction cautioning jury the "You are not permitted to
read about it in the newspaper and you are not permitted to watch
or listen to anything that is broadcast about the trial on
television or radio" was "adequate safeguard[] to ensure that
appellants received a fair trial free from prejudice.").
24
decide the case. Don't attempt to gather any
information on your own which you think might be
helpful. Don't engage in outside reading on the case.
Don't attempt to visit any places mentioned in the case
and don't in anyway try to learn about this case
outside the courtroom.
Now that the trial has begun you must not read
about it in the newspaper or watch or listen to
television or radio reports about what is happening.
The reasons for these rules, as I am certain you will
understand, is that your decision in this case must be
based solely on the evidence that is presented at
trial.
After the first day of trial, the court admonished the jury,
I again remind you, also, most significantly that
you refrain from watching any television news reports
that might cover this trial and refrain from reading
anything in the newspaper that might be written
covering this trial. As you recall when I told you
yesterday that I am relying on you to more or less lock
yourselves up at home, if you will, with regard to
steering clear of any newspaper reports or news reports
that might cover this trial and please have anyone who
lives in your household with you make sure that they
cooperate in that effort.
Appellant has failed to show that the trial publicity was
"innately prejudicial," and that the admonishments by the trial
judge were not appropriate to insure a fair and prejudice free
trial.
C. Motion to Depose Witness
Arthur appeals the denial of his Federal Rule of Criminal
Procedure 15(a) motion to depose an indispensable witness. On
the eighth day of trial, Arthur sought the court's permission to
depose Earl Castain, a witness who would have allegedly
corroborated Arthur's alibi defense to the Earhart shootings.19
19
As an initial matter, we doubt the importance of Castain's
testimony. Although Arthur asserts in his brief that Castain
25
According to Arthur, counsel had been attempting to locate
Castain since the return of the superseding indictment. Castain
was allegedly employed on a ship which, at the time of trial, was
moored off the island of Diego Garcia, in the Indian Ocean.
Arthur sought to take the deposition telephonically, after having
the ship's master swear Castain. The district court denied
Arthur's motion, stating in relevant part,
Under the circumstances presented to the court in this
matter, the court finds that "exceptional
circumstances" within the meaning of Rule 15(a) of the
Federal Rules of Criminal Procedure did not exist to
justify the taking of Mr. Castain's deposition.
Defendant Arthur's request to take Mr. Castain's
deposition was untimely and, it would have been
difficult, if not impossible, within the available time
constraints, for the Government to confirm the
identification and reliability of the potential
witness. Further, the court was unaware of any person
authorized to administer the requisite oath to Mr.
Castain and the court on such short notice would not
commission such a person due to lack of reliable and
trustworthy indicia.
(emphasis supplied).
Rule 15(a) provides in relevant part,
would testify that he saw Arthur on an April 4, 1990 airline
flight, in fact, the proffer only states that Castain would
testify that
He is a seaman by trade and once in 1990 when he was
flying from New Orleans to Seoul, Korea to pick up a
ship...he recalls Arthur on the same flight. Arthur
did not travel to Korea, but Castain is not sure where
he last saw him.
Notable is what the proffer does not include. It does not
specify that Castain would testify to the April 4th date, and it
does not specify that Castain saw Arthur travel all the way to
Seattle, Washington. In fact, the airline tickets offered by
Arthur reflect that Castain and "Willis Mitchell"-- according to
Arthur he flew under an alibi--departed New Orleans to Memphis,
Tennessee.
26
Whenever due to exceptional circumstances of the case
it is in the interest of justice that the testimony of
a prospective witness of a party be taken and preserved
for use at trial, the court may upon motion of such
party and notice to the parties order that testimony of
such witness be taken by deposition.
"The word ``may' signifies that the district court retains broad
discretion in granting a Rule 15(a) motion and that the court
should review these motions on a case-by-case basis, examining
whether the particular characteristics of each case constitute
``exceptional circumstances.'" United States v. Dillman, 15 F.3d
384, 389 (5th Cir. 1994), cert. denied, 115 S.Ct. 183 (1994).
"The district court decides when ``exceptional circumstances'
exist, subject to appellate review for abuse of discretion."
United States v. Aggarwal, 17 F.3d 737, 741-42 (5th Cir. 1994).
We find that the district court was well within its
discretion in determining that exceptional circumstances did not
exist. As discussed at footnote 19 above, Castain's testimony
was of questionable value to the defense case. Further, there is
no showing that, had the deposition been taken, it would have
been admissible at trial. See Fed. R. Crim. P. 15(d) and Fed. R.
Evid. 804(a)(5). Finally, the reliability of the telephonic
method of deposition in this matter was of serious concern. As
stated by the district court, there was no way for the government
to verify the identification and reliability of the deponent.
We have located only one reported case discussing the use of
a telephonic deposition--without any parties' attorneys being on-
site with the deponent--in a criminal case. See United States v.
Ferrera, 746 F.2d 908, 913 (1st Cir. 1984) In that case, the
27
denial of the request for telephonic deposition was affirmed. We
do not believe that Arthur has provided a "strong showing of the
necessity of such a procedure,"20 nor has he shown that an
"exceptional circumstance" or "the interests of justice" mandated
the taking of the deposition.
D. Judicial Misconduct
Glenn Metz contends that his conviction should be reversed
because the district court failed to remain fair and impartial
while conducting the trial. Specifically, Metz contends first
that the district court conducted an "ex parte conference" with
the prosecutors, and received "unidentified papers, ex parte, and
sua sponte." Second, Metz contends that the district court
"refused to rule on [Elwood, Tolliver and Lawrence's double
jeopardy motions] until after the completion of the trial, for
the sole purpose of permitting the prosecution to illegally
display the 52 kilos of cocaine to the jury." Third, that the
trial court "displayed a highly unprofessional and partial lack
of tolerance towards members of the defense."
1. Standard of Review
Our standard of review to determine whether alleged judicial
conduct prejudiced an appellant's right to a fair trial is well
settled. See United States v. Williams, 809 F.2d 1072, 1086 (5th
Cir. 1987), cert. denied, 484 U.S. 896, 108 S.Ct. 228 (1987),
20
For example, although we recognize that Castain was beyond
the subpoena power of the court, there was no showing that
Castain would not voluntarily return to testify at the trial, nor
did Appellant explain why a more traditional deposition could not
have been conducted.
28
In reviewing these [judicial misconduct] claims, we are
necessarily limited to the cold black and white of the
transcripts. The life of the trial, in which gestures
and intonations breathe more subtle meanings into the
transcribed words, cannot be presented and escapes us.
We must therefore scrutinize the record all the more
carefully. The Second Circuit has described the task
before us:
Our role, however, is not to determine
whether the trial judge's conduct left
something to be desired, or even whether some
comments would have been better left unsaid.
Rather, we must determine whether the judge's
behavior was so prejudicial that it denied
[the appellants] a fair, as opposed to a
perfect, trial.
(quoting United States v. Pisani, 773 F.2d 397, 402 (2nd Cir.
1985)); see also, United States v. Bermea, 30 F.3d at 1569,
To rise to the level of constitutional error, the
district judge's actions, viewed as a whole, must
amount to an intervention that could have led the jury
to a predisposition of guilt by improperly confusing
the functions of judge and prosecutor. The judge's
intervention in the proceedings must be quantitatively
and qualitatively substantial to meet this test.
(citations omitted).
2. Ex Parte Conference and Documents
Appellant has failed to point us to any portion of the
record indicating that the court conducted ex parte
communications with the prosecutors or improperly accepted ex
parte documents.21
3. Double Jeopardy Motion
Metz next argues that the district court favored the
prosecution by withholding his ruling on Elwood, Tolliver and
21
We know from the record that the district court conducted in
camera reviews of some documents, however, the court's discretion
to conduct such inspections is well settled.
29
Lawrence's double jeopardy motions until after trial to deprive
them of the opportunity to appeal an adverse double jeopardy
ruling as permitted under Abney v. United States, 431 U.S. 651(1977). However, the record makes clear that the double jeopardy
motions of Tolliver and Lawrence were not filed until after trial
began, and that the Elwood's motion was, in fact, denied prior to
trial. Metz's argument is without foundation.
4. Trial Judge's Treatment of Defense Counsel and Witness
Finally, Metz complains that the trial judge's treatment of
a defense witness and defense counsel deprived him of a fair
trial. We initially note that none of the incidents cited by
Metz involved his attorney or witnesses. We also note that
district judges can exercise broad discretion in maintaining the
pace and objectivity of the trial. See e.g. United States v.
Wallace, 32 F.3d at 928,
A federal district judge may comment on the evidence,
question witnesses, bring out facts not yet adduced,
and maintain the pace of the trial by interrupting or
setting time limits on counsel. "Improper" comments by
a trial judge do not entitle the defendant to a new
trial unless the comments are error that is substantial
and prejudicial to the defendant's case.
(citations omitted).
Specifically, Metz complains that the district judge
irrevocably impinged on the fairness of the trial when he asked
the mother of one of the defendants--who was allowed to stay in
the courtroom after her testimony was completed--to leave the
courtroom during the questioning of her daughter, who was called
as a subsequent defense witness. Apparently, the judge noticed
30
that the spectator appeared to be signaling answers to her
daughter.22 While we fail to see how exclusion of a spectator
who is prompting another witness could rise to the level of
constitutional error, we find that the district court's
subsequent cautionary instruction alleviated any possible error
that had occurred.23
Metz also complains of the district court's alleged "abuse"
of defense counsel. We have reviewed those portions of the
transcript cited by Appellant, and conclude that the district
judge's conduct was well within constitutional boundaries, and in
no way affected Metz's right to a fair trial. In addition, if
any error occurred as a result of the district judge's conduct
vis-a-vis defense counsel, it was ameliorated by the jury
22
The judge stated,
Excuse me. Now Mrs. Elwood, you may be doing it
unconsciously, ma'am, but you're signaling answers by
nodding your head up and down and side to side. Yes,
ma'am, you. And so I am going to ask you to please
leave the courtroom for the rest of the testimony.
23
After a break, the judge instructed the jury,
Ladies and gentlemen, you will recall before the break
I asked defendant Elwood's mother to leave the
courtroom because, as I mentioned, I thought she was
signaling her head in negative and affirmative
responses or shaking her head. As I mentioned when I
asked her to leave, it might have been done
subconsciously, which many people may do on hearing a
question and having a tendency to indicate an
answer...She has been invited to come back into the
courtroom now, if she chooses to. Because it may have
been a subconscious thing. I ask you not let my
admonition to ask her to leave the courtroom to affect
the credibility of the witness in this case.
31
instruction24 that delineated his proper role in the
proceedings.25
E. Improper Jury Instruction on Murder
Helmstetter complains that the district court violated his
due process rights by improperly instructing the jury regarding
the murder count. Helmstetter failed to voice this objection at
trial, and therefore our review is for plain error. See United
States v. Parziale, 947 F.2d 123, 129 (5th Cir. 1991), cert.
denied, 503 U.S. 946, 112 S.Ct. 1499 (1992),
Although Fed. R. Crim. P. 30 provides that a defendant
waives his right to appeal the lack of a limiting
instruction if he failed to request such an instruction
when the testimony was admitted or when the court
charged the jury, Fed. R. Crim. P. 52(b) provides
th[at] "[p]lain errors or defects affecting substantial
rights may be noticed [on appeal] although they were
not brought to the attention of the trial court."
Thus, by combining Rules 30 and 52 of the Federal Rules
of Criminal Procedure, the courts have created a plain
error standard of review....
While Helmstetter's brief is far from specific, it appears that
he is contending that the district court should have instructed
the jury on the elements of murder under Louisiana law rather
than allowing the jury to apply a generic definition of murder.
There does not appear to be any dispute that the district court
24
In relevant part, the judge instructed the jury,
Also, do not assume from anything I may have done or
said during the trial that I have any opinion
concerning any of the issues in this case. Except for
the instructions to you on the law, you should
disregard anything I may have said during the trial in
arriving at your own findings as to the facts.
25
See United States v. Bermea, 30 F.3d at 1571-72.
32
properly instructed the jury on the elements of 18 U.S.C. §
1959,26 the crime for which he was indicted.
To win reversal under the plain error standard, Appellant
must show not only that a "plain" error occurred, but must also
show that the error "affected his substantial rights." United
States v. Calverley, 37 F.3d at 162. "[I]n most cases the
affecting of substantial rights requires that the error be
prejudicial; it must affect the outcome of the proceeding." Id.
at 164.
In the first instance, no plain error occurred because
federal courts typically require only a "generic" definition of
the underlying state crime in a RICO charge. See United States
v. Orena, 32 F.3d 704, 714 (2nd Cir. 1994); United States v.
Bagaric, 706 F.2d 42, 62 (2nd Cir. 1983), cert. denied, 464 U.S.
840, 104 S.Ct. 133 (1983). Second, no Appellant ever contended
that the Earhart Expressway shootings did not constitute murder,
26
Title 18 United States Code section 1959 provides, in
relevant part,
Whoever...for the purpose of gaining entrance to or
maintaining or increasing position in an enterprise
engaged in racketeering activity, murders, kidnaps,
maims, assaults with a dangerous weapon, commits
assault resulting in serious bodily injury upon, or
threatens to commit a crime of violence against any
individual in violation of the laws of any State or the
United States, or attempts or conspires to do so, shall
be punished--
(1) for murder, by death or life
imprisonment, or a find under this title or
both....
33
therefore the district judge had no reason to believe that the
definition of the underlying state crime was at issue.
Finally, even if we were to find that the district court had
committed plain error by failing to set out the elements of
murder, in no way were the Appellant's substantial rights
affected. When two persons die while riding in a vehicle that is
shot over 150 times with automatic weapons, any conceivable
definition or element of murder has been satisfied. An
enumeration of the elements of the crime could have in no way
have affected the verdict.
V. DOUBLE JEOPARDY
Appellant Elwood argues that the district court improperly
denied his pre- and post-trial motions to dismiss count one of
the indictment on double jeopardy grounds.
A. Background
Elwood argued that the count one conspiracy was the same
offense for which he had been previously convicted--along with
co-defendants William Barnes, Jr. and Ernest Marrero--of
conspiracy with intent to distribute cocaine, possession with
intent to distribute cocaine, and using and carrying firearms in
relation to a drug trafficking offense.27 The government does
not dispute that certain of the overt acts referred to in the
27
We affirmed Elwood's prior conspiracy conviction in United
States v. Elwood, 993 F.2d 1146 (5th Cir. 1993) (Elwood I).
34
superseding indictment were also overt acts in the Elwood I
conspiracy.28
The district court denied Elwood's pre-trial motion to
dismiss on two bases. First, under the five factor test we set
out in United States v. Marable, 578 F.2d 151, 154 (5th Cir.
1978),29 the district court found that the conspiracies were
separate. Second, the court found that even if the conspiracies
were not separate, the double jeopardy exception in Brown v.
Ohio,30 was applicable. The district court denied Elwood's
post-trial motion to dismiss and motion for a new trial on the
basis that, after having heard all of the evidence, the
conspiracies were clearly separate.
B. Standard of Review
28
E.g., the superseding indictment states,
On or about July 12, 1991, a LaPlace, Louisiana,
defendant GLENN METZ and GERALD ELWOOD, among others,
possessed approximately two (2) kilograms of cocaine.
29
Our examination of the record focuses upon these
elements: (1) time, (2) persons acting as co-
conspirators, (3) the statutory offenses charged in the
indictments, (4) the overt acts charged by the
government or any other description of the offense
charged which indicates the nature and scope of the
activity which the government sought to punish in each
case, and (5) places where the events alleged as part
of the conspiracy took place.
United States v. Marable, 578 F.2d at 154.
30
432 U.S. 161, 169 n. 7, 97 S.Ct. 2221, 2227 n.7 (1977).
35
Double jeopardy issues are questions of law, thus our review
is plenary.31 As we have set out previously,
The Supreme Court described the initial test for
determining whether two offenses are the same for
double jeopardy purposes in Blockburger v. United
States. We ask "whether the offense charged in the
subsequent prosecution ``requires proof of a fact which
the other does not.'" If "application of [Blockburger]
reveals that the offenses have identical statutory
elements or that one is a lesser offense of the
other...the subsequent prosecution is barred." As
recognized by the Supreme Court, however, Blockburger
does not constitute the entire double jeopardy inquiry
in the context of successive prosecutions. We also
must test the second prosecution to determine whether
it is barred under one of the narrowly defined
exceptions....
United States v. Deshaw, 974 F.2d 667, 670 (5th Cir. 1992)
(footnotes omitted). Appellant carries the initial burden of
showing that he has been subjected to double jeopardy. See id.Once the Appellant successfully establishes his prima facie
claim, the burden shifts to the government to show by a
preponderance of the evidence that the indictment charges a crime
separate from the charge for which he was previously placed in
jeopardy. Id. The government may instead elect to show that the
subsequently indicted conduct falls into one of the narrowly
circumscribed exceptions to the double jeopardy bar.
C. Analysis
There is no question that Elwood has established a prima
facie claim of double jeopardy. The Elwood I conspiracy took
place within the same time frame as the instant conspiracy (Metz
31
See, e.g., United States v. Gonzales, 40 F.3d 735, 737 (5th
Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1716 (1995).
36
conspiracy), involved common participants--albeit in Elwood I the
common characters appeared as unindicted co-conspirators, not co-
defendants--overt acts from the Elwood I conspiracy were listed
as overt acts of the Metz conspiracy and the statutory offenses
are identical. While the government attempts to distinguish the
conspiracies on the basis of the Marable factors, it seems plain
to us that the Elwood I conspiracy is simply a small part of the
larger Metz conspiracy, and is therefore indistinguishable for
double jeopardy purposes. See United States v. Deshaw, 974 F.2d
at 673-75. We do find, however, that the so-called "due
diligence" exception set forth in Brown v. Ohio is applicable.
In Brown v. Ohio, the Supreme Court stated,
An exception may exist where the State is unable to
proceed on the more serious charge at the outset
because the additional facts necessary to sustain that
charge have not occurred or have not been discovered
despite the exercise of due diligence.
432 U.S. at 169 n.7, 97 S.Ct. at 2227 n.7. Whether the Brown
exception can be utilized to avoid double jeopardy estoppel of
subsequent conspiracy prosecutions is a matter of first
impression in this Circuit. We begin by addressing the
parameters of the exception.
As stated by the Supreme Court,
The rule established in Brown[v. Ohio], however,
does have some exceptions. One commonly recognized
exception is where all the events necessary to the
greater crime have not taken place at the time the
prosecution for the lesser is begun. This exception
may also apply when the facts necessary to the greater
were not discovered despite the exercise of due
diligence before the first trial.
37
Jeffers v. United States, 432 U.S. 137, 151-52, 97 S.Ct. 2207,
2216-17 (1977). The Brown exception can be applied in two ways.
First, double jeopardy does not apply where the greater crime was
incomplete at the time the lesser charge was prosecuted. This
was, in fact, the situation faced by the Supreme Court in Diaz v.
United States.32 Therein, the Court determined that Diaz could
be prosecuted for murder, despite his previous conviction for
assault and battery of the same victim, because the victim had
not died--and therefore the crime of murder had not been
committed--at the time of the assault and battery prosecution.
Under the second application of the exception, a person
prosecuted for a lesser included offense may be subsequently
prosecuted for the greater offense if the government, despite the
exercise of due diligence, did not have sufficient facts to
establish the greater crime.
This case does not present a classic Diaz v. United States
situation where Elwood was tried for a lesser included offense
because the greater offense was not yet complete. While the
conspiracy continued beyond Appellant's arrest in Elwood I, he
has remained in custody since his initial arrest. Application of
the first exception in this situation would, in essence, allow
the exception to consume the rule. For double jeopardy purposes,
and specifically for purposes of the Brown exception, Elwood's
32
223 U.S. 442, 32 S.Ct. 250 (1912).
38
participation in the conspiracy ceased at the time of his
arrest.33
However, the second prong of the Brown exception is
applicable.34 From the record, it is apparent that while the
government may have suspected the existence of the Metz
conspiracy during the prosecution of Elwood I, at that time the
government did not have sufficient evidence to indict Elwood for
his participation in the Metz conspiracy. We must balance this
factor with the relevant double jeopardy policies to determine
whether the Brown exception is applicable.
As set out by the Ninth Circuit,
Two policies served by the Double Jeopardy Clause
are relevant [to the application of the due diligence
exception]: prevention of multiple punishments for one
offense, and protection from harassment and from the
physical, psychological, and financial burdens of
multiple prosecutions. We must balance against them
the societal interest in imposing just punishment on
the guilty.
United States v. Stearns, 707 F.2d 391, 393 (9th Cir. 1983),
cert. denied, 464 U.S. 1047, 104 S.Ct. 720 (1984). We are
33
Cf. Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407(1985)(Evidence was consistent with the jury's finding that the
CCE continued beyond the time of initial conviction because
defendant was arrested for drug trafficking while out on bail
pending sentencing for prior conviction).
34
The Supreme Court has "caution[ed] against ready
transposition of the "lesser included offense" principles of
double jeopardy from the classically simple situation presented
in Brown to the multilayered conduct, both as to time and to
place, involved in this case." Garrett v. United States, 471
U.S. at 789, 105 S.Ct. at 2416. However, as noted above, the
Elwood I conspiracy was a lesser conspiracy, wholly subsumed
within the greater Metz conspiracy. Therefore, we find the Brown
"lesser included offense" situation analogous to the present
case.
39
convinced that these concerns can be eliminated through the
narrow application of the exception.35
The government plainly could not prove Elwood's involvement
in the Metz conspiracy at the time of Elwood I. As summed up by
the government in its brief,
[A]t the time of his December 1991 trial in Elwood I,
the government was...unaware of key evidence connecting
him to the acts of violence committed in furtherance of
the instant conspiracy. For example, Wilfred Carr, the
sole surviving witness to the Earhart Expressway
shootings, did not cooperate with the government until
shortly before July 1992. Carr thereafter gave key
information linking the vehicle used in that incident
with Appellant Elwood. Moreover, Elwood's admissions
to Fennidy about the Earhart Expressway shootings were
not made until after July 1992, i.e., after the two
become fellow inmates at a federal facility, and Dwayne
Sandifer did not inform the government about Elwood's
admissions to him until after Sandifer entered into his
agreement with the government in March 1992. Thus the
government could not have proven Elwood's guilt beyond
a reasonable doubt without the evidence it obtained
after the Elwood I trial.
Thus, while the government may have suspected that Elwood was
part of the Metz conspiracy, it was not until later that evidence
showing his involvement came to light. What appeared on the
surface to be a discrete drug transaction--based on the facts
reasonably available to the government at the time--turned out to
be part of a much larger conspiracy.36 And Elwood, whose initial
35
Although the sentencing guidelines do not factor into our
double jeopardy analysis, much of the prejudice resulting from
the initial prosecution can be eliminated through proper
application of the sentencing guidelines.
36
Cf. United States v. Rosenberg, 888 F.2d 1406, 1415 (D.C.
Cir. 1989)("On remand, the government must be given an
opportunity to argue for the existence of this "due diligence"
exception and to demonstrate that, despite the exercise of due
diligence, it did not discover evidence linking the conspiracy to
40
role appeared small, turned out to be a major character in the
overall scheme.37
It is elementary that the government cannot prosecute on
mere suspicion. While Elwood contends that the government knew
of the existence of the Metz conspiracy by the time of the Elwood
I trial, he nowhere contends that the government had sufficient
evidence to indict him for the Metz conspiracy.38 As the Court
stated in Brown, an exception may apply where "the additional
facts necessary to sustain that charge have not occurred or have
not been discovered despite the exercise of due diligence". In
this case, the evidence necessary to sustain the charge was not
discovered until after the Elwood I prosecution. In fact, much
of Elwood's most egregious conduct--e.g., his role in the Earhart
the Washington bombings until after Rosenberg and Blunk had been
convicted in the New Jersey trial.").
37
We emphasize that the exception applied in this case is very
narrow in scope. If the government suspected Elwood's
involvement in a larger conspiracy, the far better course would
have been to indict him only on the substantive offense, and
later, when the facts were fully developed, indict him on the
broad conspiracy. See e.g. United States v. Felix, 503 U.S. 378,
___, 112 S.Ct. 1377, 1385 (1992) ("[A] substantive crime, and a
conspiracy to commit that crime, are not the ``same offense' for
double jeopardy purposes."); Garrett v. United States, 471 U.S.
773, 105 S.Ct. 2407 (1985) (Separate punishments permitted for
underlying predicate offenses and CCE offense).
38
The search warrants referenced by Elwood clearly demonstrate
that the government suspected the existence of the Metz
conspiracy and Elwood's involvement with the conspiracy.
However, Elwood's reference to the warrants merely begs the
question whether the government could "sustain an indictment" on
the charge. Because assertions in a search warrant are made on
the basis of "probable cause," and not "beyond a reasonable
doubt," they are only useful as evidence of the government's
"knowledge" (based on probable cause), not its ability to prove
the charge.
41
Expressway murders--was not even suspected at the time of the
initial prosecution.
VI. CONSPIRACY39
In a conspiracy prosecution, the government must prove
beyond a reasonable doubt: (1) that an agreement to violate the
narcotics laws existed between two or more persons, (2) that each
alleged conspirator knew of the conspiracy and intended to join
it, and (3) that each alleged conspirator did participate in the
conspiracy. United States v. Magee, 821 F.2d 234, 238-39 (5th
Cir. 1987). Proof of any element may be by circumstantial
evidence, and "a common purpose and plan may be inferred from a
'development and a collocation of circumstances.'" United States
v. Marx, 635 F.2d 436, 439 (5th Cir. Unit B 1981) (quoting United
States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.) (en banc),
cert. denied, 440 U.S. 962 (1979). Reviewing the role played by
each of the appellants in this "collocation," we uphold the
convictions.
39
Sections VI through XI address sufficiency of the evidence
on various statutory offenses. We apply the same standard of
review to each offense: Convictions must be affirmed if the
evidence, viewed in the light most favorable to the verdict, with
all reasonable inferences and credibility choices made in support
of it, is such that any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v.
Kim, 884 F.2d 189, 192 (5th Cir. 1989). In making this
determination, we need not exclude every reasonable hypothesis of
innocence. United States v. Henry, 849 F.2d 1534, 1536 (5th Cir.
1988). Juries are free to use their common sense and apply
common knowledge, observation, and experience gained in the
ordinary affairs of life when giving effect to the inferences
that may reasonably be drawn from the evidence. United States v.
Cruz-Valdez, 773 F.2d 1541, 1546-47 (11th Cir. 1985) (en banc),
cert. denied, 475 U.S. 1049, 106 S.Ct. 1272 (1986).
42
A. Danielle Metz
Danielle Metz raises two arguments regarding the sufficiency
of the government's evidence against her on count one of the
indictment. First, she asserts that the Government's evidence
was insufficient to sustain her conviction. Second, as a
corollary of the same argument, she asserts that her testimony
should be credited over the testimony of the government's
witnesses because many of them were testifying pursuant to plea
agreements. We address these issues in reverse order.
Danielle Metz asserts that the Government's evidence failed
to controvert her trial testimony that she was not involved in
the drug conspiracy. This argument is apparently premised on the
claim that the government witnesses were not credible, and
therefore the jury should have credited her testimony. It is a
fundamental axiom of appellate review that matters of credibility
are for the jury. "Only when testimony is so unbelievable on its
fact that it defies physical laws should the court intervene and
declare it incredible as a matter of law." United States v.
Lerma, 657 F.2d 786, 789 (5th Cir. 1981), cert. denied, 455 U.S.
921, 102 S.Ct. 1279 (1982). The fact that the majority of the
witnesses against Appellant testified pursuant to plea agreements
does not affect this maxim. Although the jury can take plea
agreements into account when assessing credibility; the
credibility of cooperating witnesses remains an issue for the
jury. See United States v. Puma, 937 F.2d 151, 155 (5th Cir.
1991), 502 U.S. 1092, 112 S.Ct. 1165 (1992).
43
Danielle Metz does not make any specific allegations with
regard to the sufficiency of the evidence against her, but argues
generally that the evidence was insufficient to sustain her
conspiracy conviction. We have reviewed the record, and agree
with the synopsis of the evidence contained in the government's
brief.
Overwhelming evidence clearly demonstrated that
appellant Danielle Metz was a prime force, and not just
a passive presence, in the acquisition and distribution
of large quantities of cocaine by the Metz
organization....Angela Bernard testified from 1987 to
1991, she periodically received cocaine from Danielle
Metz and sold it at the direction of Danielle Metz and
gave her the payments collected for this cocaine.
Furthermore, Bernard and Danielle Metz made at least
five trips to Houston to obtain 40 kilogram loads of
cocaine on each trip for distribution in the New
Orleans area.
Rigoberto Rincon testified that he delivered 40
kilograms of cocaine to Danielle Metz at her Slidell
residence and received payment of $350,000 to $400,000
in cash from her. Rincon also consulted with Danielle
Metz about arrangements for delivery of cocaine to Metz
organization employees in Miami.
Moreover, Oliver Myles, Dwayne Sandifer, and
Miranda Roebuck testified that Danielle Metz was their
contact for receipt of the delivery of hundreds of
kilograms of cocaine from the Metz organization, the
last quantity for Myles and group being a five kilogram
delivery of cocaine directly from Danielle Metz between
late July and August 16, 1991.
The record is replete with evidence proving that a conspiracy
existed. We are left to determine whether the evidence showed that
Danielle Metz knew of the conspiracy, intended to join and, in
fact, participated in the conspiracy. Our review of the record
indicates that sufficient evidence was presented, regarding
Appellant's conduct, to show her complicity and participation in
44
the scheme. See United States v. Marx, 635 F.2d at 439 ("assent to
a conspiracy may be inferred from acts which furthered the purpose
of the conspiracy."); see also United States v. Middlebrooks, 618
F.2d 273, 278 (5th Cir.), cert. denied, 449 U.S. 984 (1980). We do
not find any reason to disturb the jury's decision to credit the
testimony of the government's witnesses over that of Danielle Metz.
B. Sterling
Sterling also contends that the government failed to present
sufficient evidence to convict him on the conspiracy charge.
Appellant does not deny the existence of a conspiracy, but contends
that he was simply a "small time" drug dealer, and that the
government failed to produce sufficient evidence to show his
participation in the Metz conspiracy. As we have stated
previously,
One may be guilty as a co-conspirator even if he or she
plays only a minor role, and that person need not know
all the details of the unlawful enterprise or know of the
exact number or identity of all the co-conspirators, so
long as in some fashion he or she knowingly participates
in the larger conspiratorial objectives.
United States v. Greenwood, 974 F.2d 1449, 1457 (5th Cir. 1992),
cert. denied, ___ U.S. ___, 113 S.Ct. 2354 (1993) (citations
omitted).
45
While the evidence is circumstantial,40 there was sufficient
evidence to link Sterling to the conspiracy. A government witness
testified that Sterling was dealing drugs with Moore or getting
drugs from Moore, and that the witness had "fronted" the pair drugs
in the past. In addition, numerous intercepted telephone
conversations indicated that Sterling was actively involved in the
conspiracy.
On one occasion, Sterling and Moore were intercepted
discussing "fronting" a quantity of drugs to a person named "Fat."
On another occasion, Sterling and Moore were intercepted discussing
cash proceeds from drug transactions. Sterling and an unknown male
were also intercepted discussing money and drugs.
During a period of surveillance of Sterling, Moore was
intercepted expressing his concern to Sterling and another
individual that Sterling might be arrested while carrying drug
proceeds. Finally, Sterling was present at Moore's apartment when
a search warrant was executed and agents seized numerous firearms,
beepers, cellular phones and drug records. The record indicates
40
See United States v. Espinoza-Seanez, 862 F.2d 526, 537 (5th
Cir. 1988),
[P]roof of "mere knowing presence" is not sufficient to
convict a person of participation in a conspiracy.
Although each element of the conspiracy charge must be
proved beyond a reasonable doubt, no element need by
proved by direct evidence, but may be inferred from
circumstantial evidence. An agreement may be inferred
from "concert of action." Voluntary participation may
be inferred from "a collocation of circumstances."
Knowledge may be inferred from "surrounding
circumstances."
(citations omitted).
46
that Sterling was the owner of at least one of the firearms, a
beeper and a cellular phone.41
Based on the foregoing, the jury could reasonably find that
Sterling was a participant in the Metz conspiracy. There is no
question that he had a close association with Moore, and the
testimony of the government witness, in conjunction with the
intercepted telephone conversations, indicate that Sterling was not
simply a "small time" dealer, but rather he was an active member of
the conspiracy.
C. Marlo Helmstetter
Finally, Helmstetter summarily contends that the evidence was
insufficient to convict him of the count I conspiracy. The record
makes clear that the government presented sufficient evidence for
a reasonable jury to determine that he was a member of the
conspiracy. As discussed above, the record is manifest with
evidence showing that a conspiracy existed, the only question is
whether the government presented sufficient evidence to show that
Helmstetter was involved. It does.
The record shows that Helmstetter acted in concert with Arthur
and Elwood to kill Michael Wilson42 and to attempt to kill Lester
41
While "mere presence" is insufficient to show connection to
a conspiracy, presence can be coupled with other factors to
demonstrate participation.
42
Elwood was positively identified by Wilfred Carr as one of
the shooters in the Earhart Expressway murders in which Michael
Wilson was killed.
47
Duplessis.43 These events were tied to an on-going "war" between
the Metz conspiracy and a rival drug organization. Helmstetter's
ties to the conspiracy were also revealed through a series of
letters, written to Elwood, while Helmstetter was in jail (See
Section II.A. supra). Therein, Helmstetter discussed his desire to
reassociate with Elwood and Arthur to take care of their
"business," and to get back in the "game."44 He asked Elwood to
have his gun ready for him when he was released. He also made
numerous references to he, Elwood and Arthur revenging the killing
of a mutual friend.
In addition, shortly before Helmstetter was released from
prison, Elwood wrote a letter to him that, inter alia, provided
advice on his return to society, advised him not to deal in
"crack," told him to not to keep guns with drugs and advised
Helmstetter that he had spoken with Moore about picking him up from
jail.
VII. CCE
Danielle Metz next contests the sufficiency of the evidence to
sustain her conviction for engaging in a continuing criminal
enterprise (CCE) in violation of 21 U.S.C. § 848. To show a
violation of the CCE statute, the government must prove that
43
A witness testified that he saw Helmstetter, among others,
riding in a black station wagon, carrying an AK-47. The witness
testified that he saw the station wagon pass, heard gun shots and
then saw Helmstetter flee in the station wagon. Duplessis, who
was compelled to testify, stated that the shooters exited from a
black station wagon.
44
A government witness testified that "game" was a euphemism
for the drug trade.
48
Appellant organized, supervised or managed five or more persons in
a continuing series of drug violations from which she obtained
substantial income. See id.; United States v. Gonzales, 866 F.2d
781 (5th Cir. 1989), cert. denied, 490 U.S. 1093, 95 S.Ct. 2438(1989).
First, Danielle Metz argues that the government failed to show
that she received "substantial income" from the drug enterprise.
She bases this argument on the fact that the government failed to
show that she made significant purchases during the relevant
period.
Second, Appellant contends that the evidence was insufficient
to show that she occupied the position of organizer, supervisor or
manager. Danielle Metz bases this assertion on the fact that she
did not know where to obtain a weapon for Moore, did not know where
funds were kept and because she was not readily accessible when
potential customers attempted to contact her.
Finally, Appellant argues that the government failed to show
that she was the organizer, supervisor or manager of five or more
persons. While Appellant appears to concede that she was involved
with at least three persons, she also contends that the government
failed to carry its burden of showing that she actually organized,
supervised or managed those persons.
A. Substantial Income
"[T]he requirement that a defendant obtain substantial income
from drug trafficking is satisfied by showing that many thousands
of dollars changed hands, and that some was received by the
49
defendant." United States v. Gonzales, 866 F.2d at 784. Evidence
showing that Appellant had the resources to engage in large scale
narcotics transactions in sufficient to meet this requirement. See
e.g. United States v. Church, 955 F.2d 688, 697 (11th Cir. 1992),
cert. denied, ___ U.S. ___, 113 S.Ct. 233 (1992)("This court has
held that ``evidence that large amounts of cocaine and tens of
thousands of dollars passed through the operation' satisfies this
element."); United States v. Webster, 639 F.2d 174, 182 (4th Cir.
1981), cert. denied, 454 U.S. 857, 102 S.Ct. 307 (1981)("[G]iven
the quantity of drugs which were shown to have been moving in and
out of Webster's possession, the jury would have been justified in
concluding that he had received tens of thousands or even hundreds
of thousands of dollars from his drug business.").
Angela Bernard testified that she distributed in excess of 500
kilograms of cocaine that she received from Danielle Metz, and
collected approximately $3,500,000, which she turned over to
Danielle Metz. In addition, the evidence demonstrated that, in two
separate transactions, Miranda Roebuck gave a total of $136,000
directly to Danielle Metz in exchange for 8 kilograms of cocaine.
The evidence also demonstrated that Danielle Metz delivered
$109,000 to purchase 40 acres of land, another $19,000 for several
lots, and had $67,000 in cash and $70,000 in jewelry in safe
deposit boxes under her control. This evidence was more than
sufficient to satisfy the government's burden.
B. Supervision, Organization or Management of Five Persons
As summarized by the Second Circuit,
50
In assessing the sufficiency of the evidence to support
the verdict that Roman supervised or managed at least
five others, we note that generally a management or
supervisory relationship within the meaning of § 848 is
"created when one person gives orders or directions to
another person who carries them out." The defendant on
a CCE charge need not "have been the dominant organizer
or manager as long as she was in a managerial position
with respect to five other persons," nor does the statute
require proof that there was "personal contact between
the leader and each underling," or that all of the
claimed relationships were of the same type or existed at
the same moment in time. Thus, the requisite
associations and relationships may be found even in
loosely structured enterprises. Finally, we note also
that in any review of the record for sufficiency,
"``pieces of evidence must be viewed not in isolation, but
in conjunction.'"
United States v. Roman, 870 F.2d 65, 73 (2nd Cir. 1989), cert.
denied, 490 U.S. 1109, 109 S.Ct. 3164 (1989)(citations omitted,
emphasis in original).
The evidence demonstrates that Appellant organized, supervised
or managed, at minimum, Angela Bernard, Irvin McClue, Louis Gibbs,
Rigoberto Rincon, Oliver Myles, Dwayne Sandifer, Miranda Roebuck,
Moore and Tolliver. Bernard testified that she received some of
her payment for services from Danielle Metz, that she would receive
cocaine from Appellant, and turn drug proceeds over to Appellant.
Danielle Metz directly oversaw the drug trafficking activities
of Rigoberto Rincon, Tolliver and Moore. She made arrangements for
them to pick up and deliver drugs, and either directly received the
proceeds or provided instructions for their delivery. McClue and
Gibbs appeared to have been in a subordinate relationship to
Bernard, in that, at her direction, they would bring her quantities
of cocaine once she had arranged a sale. Since Bernard was
subordinate to Appellant, McClue and Gibbs were indirectly managed
51
by Appellant.45 In addition, as set out above, Myles, Sandifer and
Roebuck all testified that Angela Bernard and Danielle Metz were
their contacts for receipt of the delivery of hundreds of kilograms
of cocaine from the Metz organization. Thus, they can be
considered either directly subordinate to Appellant or indirectly
subordinate through Angela Bernard.
The evidence was sufficient for the jury to conclude that
Appellant managed at least five persons, and that she received
substantial income from her drug trafficking activities.
VIII. POSSESSION WITH INTENT TO DISTRIBUTE
Danielle Metz next contends that the government failed to
prove beyond a reasonable doubt that she possessed, with intent to
distribute, in excess of five kilograms of cocaine as charged in
count five of the indictment. Appellant does not dispute that
sufficient evidence was adduced, but, instead attacks the
credibility of the government witnesses. As discussed above,
credibility is an issue for the jury, and we find no reason to
overturn the jury on this issue.
IX. MONEY LAUNDERING
A. Tolliver
Tolliver argues that the government failed to establish his
identity, with regard to the money laundering count, beyond a
reasonable doubt. Because the appellant asserts a ground of error
not raised below, the judgment may be reversed only upon a finding
45
See United States v. Hinojosa, 958 F.2d 624, 630 (5th Cir.
1992).
52
of plain error. Fed. R. Crim. P. 52(b); United States v.
Calverley, 37 F.3d at 162; United States v. Yamin, 868 F.2d 130,
132 (5th Cir.) cert. denied, 492 U.S. 924, 109 S.Ct. 3258 (1989).
Although the government did not put on any specific evidence to
show that the Appellant was the same "Sylvester Tolliver" who was
an officer of United Investment Property and Land Development, Inc.
(United Investment), substantial evidence was adduced to show
"Sylvester Tolliver's" involvement in the money laundering
transaction.
Lionel Ingram, the land developer who arranged the sale of the
40 acre parcel, testified that he "saw Sylvester Tolliver and Louis
Gibbs" at the closing, and that they signed as officers of United
Investment. John Coman, the attorney who incorporated United
Investment, testified that Tolliver and Gibbs, "my clients at that
time," were the incorporators of United Investment, that they came
to his office and signed the incorporation documents. Neither
Ingram nor Coman were asked to identify Tolliver in the courtroom.
However, Appellant Danielle Metz made an in court identification of
Tolliver, and named him as the carrier of several cashier's checks
naming United Investments as the remitter. Based on the amount and
nature of the evidence adduced, and the in court identification of
Tolliver by Danielle Metz, we cannot say that any error occurred.
However, even assuming, ad arguendo, that the government
should have supplied additional identification evidence, the error
could in no way be considered plain. In Calverley, we quoted the
Supreme Court's definition of "plain" errors as "errors which are
53
``obvious,' ``clear,' or ``readily apparent;' they are errors which
are so conspicuous that ``the trial judge and prosecutor were
derelict in countenancing [them], even absent the defendant's
timely assistance in detecting [them].'" Calverley, 37 F.3d at
163. We cannot say that Tolliver's asserted error comes anywhere
close to this standard.
In addition to the evidence adduced, and the lack of any
assertion by Tolliver that his identity was in question, Tolliver's
attorney in both opening and closing argument implied that Tolliver
was involved in the transaction, but lacked any intent to
"conceal."
In opening argument, Tolliver's counsel stated,
Finally, there is the money laundering count. There was
this corporation formed. The Government will introduce
this evidence. Sylvester Tolliver did not attempt to
conceal anything. He invested $5,000 of his money to buy
this land. He signed the incorporation documents in his
own name. He was an incorporator. He was secretary and
he was the director. He did nothing to conceal it. It's
our position that concealment is the essence of money
laundering.
During closing argument, Tolliver's counsel reiterated the same
theory of defense,
You next would have to determine that Sylvester Tolliver
knew that his was a scheme, that he didn't know this was
a legitimate business involvement. And I would say to
you that he signed on as an officer of the corporation
[United Investments]. He signed on the purchase
documents. If he were really trying to conceal
something, why would he use his real name.
The simple fact is that Tolliver's present assertion of error is in
direct conflict with his trial strategy. We can say neither that
54
error was committed nor that error, if any, would have been
"plain."
B. Danielle Metz
Danielle Metz contends that the government's evidence was
insufficient to prove the money laundering charge in count six of
the indictment. Specifically, Appellant contends that the
government failed to show, beyond a reasonable doubt, that she knew
that the money used in the financial transaction was drug money,
and that she was using the financial transaction to conceal the
ownership of the drug money. To show a violation of 18 U.S.C. §
1956(a)(1)(B)(i), the government must prove that the Appellant knew
that the source of the funds was illicit and that the laundering
was done with the intent to conceal or disguise the nature,
location, source, ownership, or control of the property." United
States v. Garza, 42 F.2d 251, 253 (5th Cir. 1994).
Danielle Metz's was involved in the negotiation for the
property and made most if not all of the payments on the property.
The jury could conclude that she knew the source of the funds was
illicit due to the overwhelming evidence of her participation in
the drug conspiracy and her lack of a legitimate source of income.
Based on the testimony of the attorney who incorporated United
Investment, the jury could also conclude that the transaction was
conducted with the intent to conceal the true ownership of the
property. The attorney testified that he knew that Glenn Metz "had
an interest" in the transaction, yet Glenn Metz did not participate
in the incorporation, did not hold any stock in the corporation and
55
was not an officer or director of the corporation. The government
thereby satisfied its burden of proof.
X. RACKETEERING
Elwood and Helmstetter appeal the sufficiency of the evidence
to support their convictions for violations of 18 U.S.C. § 1959arising out of the murders of Michael Wilson and Donald Ellis and
the assault of Wilfred Carr. Appellants base their argument on the
allegedly improper evidentiary rulings of the trial court and the
credibility of the remaining witnesses. Having affirmed the
district court's evidentiary rulings, we find sufficient evidence
in the record to support the racketeering convictions.
XI. FIREARMS COUNTS
Appellants Elwood, Helmstetter, Sterling and Moore all argue
that the government's evidence was insufficient to show that they
possessed firearms in relation to a drug trafficking crime in
violation of 18 U.S.C. § 924(c). Elwood's argument centers on
whether the government proved he "possessed" a firearm.
Helmstetter, Sterling and Moore contend that while the evidence may
have been sufficient to show possession of firearms, the government
failed to prove that the firearms were used in connection with drug
trafficking.
A. Standard of Review
To prove commission of the firearms offense, "the government
must establish that the defendant ``used or carried' a firearm
``during and in relation' to a drug trafficking crime." United
56
States v. Raborn, 872 F.2d 589, 594-95 (5th Cir. 1989). As we have
stated,
The government may meet its burden [under 18 U.S.C. §
924(c)] by showing that the weapon involved could have
been used to protect, facilitate, or have the potential
of facilitating the operation, and the presence of the
weapon was in some way connected with the drug
trafficking.
United States v. Blake, 941 F.2d 334, 342 (5th Cir. 1991), cert.
denied, ___ U.S. ___, 113 S.Ct. 596 (1992). Proof that the firearm
was used in relation to the drug trafficking crimes for which
Appellants were convicted "does not depend on proof that the
defendant had actual possession of the weapon or used it in any
affirmative manner, but it does require evidence that the firearm
was available to provide protection to the defendant in connection
with his engagement in drug trafficking." United States v. Raborn,
872 F.2d at 595.
B. Elwood
Elwood was convicted of firearms offenses in counts sixteen
and seventeen. The evidence in support of his conviction on count
sixteen is obvious, the firearms were seized--from a locked bedroom
in which Appellant was sleeping--during the execution of a search
warrant. The evidence linking Elwood to the firearms in count
seventeen is more circumstantial, but nonetheless sufficient. The
count seventeen firearms were seized from the same location,
approximately two months after the execution of the prior warrant.
Based on the totality of the evidence, Elwood's affinity for
firearms and his prior occupancy of the residence, the jury's
decision to credit the government's evidence, and discount the
57
testimony of Appellant's witnesses was a credibility determination
within their province.
C. Helmstetter, Sterling and Moore
The record makes clear that all of the weapons at issue were
seized from Appellants during their participation in an on-going
drug distribution conspiracy. While it may be true that the
weapons were not in the immediate proximity of illegal drugs,
Appellants argument ignores the facts and the structure of the
conspiracy. As stated in the PSR, the evidence shows that each of
these Appellants had responsibility for firearms in addition to
drug distribution. "Noah Moore, Jr., the brother of Glenn Metz,
was a distributor of cocaine, a firearms procurer and storer, and
a gunman for the organization....Marlo Helmstetter was a firearms
procurer and a gunman....Shane Sterling was a distributor of
cocaine and a firearms procurer and storer." The fact that their
"job descriptions" did not require Appellants to possess drugs and
firearms simultaneously does not insulate them from § 924(c)
liability.
XII. SENTENCING ISSUES
A. Quantity of Drugs
1. Standard of Review and Legal Framework
We review the district court's determination of the quantity
of drugs attributable to the Appellant for clear error. See United
States v. Mergerson, 4 F.3d 337, 345 (5th Cir. 1993), cert. denied,
___ U.S. ___, 114 S.Ct. 1310 (1994); United States v. Mir, 919 F.2d
940, 943 (5th Cir. 1990). A defendant's base offense level for
58
drug-trafficking offenses may be based on both "drugs with which
the defendant was directly involved [under U.S.S.G. §
1B1.3(a)(1)(A)], and drugs that can be attributed to the defendant
in a conspiracy as part of his ``relevant conduct' under [U.S.S.G.]
§ 1B1.3(a)(1)(B)." United States v. Carreon, 11 F.3d 1225, 1230
(5th Cir. 1994); see also U.S.S.G. § 2D1.1(a)(3). "Relevant
conduct" includes "all reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken criminal activity."
Carreon, 11 F.3d at 1230 (emphasis in original). Conduct may be
relevant regardless whether it occurred during the commission of
the offense of conviction, in preparation for the offense or during
an attempt to avoid detection or responsibility for the offense.
U.S.S.G. § 1B1.3(a)(1)(B).
In making its sentencing decisions, a district court may
consider any relevant evidence that "has sufficient indicia of
reliability to support its probable accuracy." U.S.S.G. §
6A1.3(a). "[A] presentence report generally bears sufficient
indicia of reliability to be considered as evidence by the trial
judge in making factual determinations required by the sentencing
guidelines." United States v. Alfaro, 919 F.2d 962, 966 (5th Cir.
1990). A sentencing court may "adopt facts contained in a PSR
without inquiry, if those facts had an adequate evidentiary basis
and the defendant does not present rebuttal evidence." United
States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994), cert.
denied, ___ U.S. ___, 115 S.Ct. 180 (1994).
59
"If information is presented to the sentencing judge with
which the defendant would take issue, the defendant bears the
burden of demonstrating that the information cannot be relied upon
because it is materially untrue, inaccurate or unreliable." United
States v. Angulo, 927 F.2d 202, 205 (5th Cir. 1991). Objections in
the form of unsworn assertions do not bear sufficient indicia of
reliability to be considered. United States v. Lghodaro, 967 F.2d
1028, 1030 (5th Cir. 1992).
2. Sterling
a. Foreseeability
Sterling claims that the district court incorrectly concluded-
-for sentencing purposes--that he could reasonably foresee
transactions in the conspiracy involving at least 57 kilograms of
cocaine. Addressing Sterling's objection at sentencing, the
district court made specific findings, wherein he referenced the
evidence in the record to support his finding that Sterling could
reasonably foresee that the conspiracy with which he was involved
was dealing in very large quantities of cocaine. At the conclusion
of the factual recitation--which encompasses over two full pages of
transcript--the court stated to defense counsel,
Now when I look at all that together I say it's
reasonable, it seems to me, by a preponderance of the
evidence to find that Mr. Sterling knew or should have
known that quantities of cocaine were being distributed
in this organization in excess of fifty kilos. Now if
you disagree with me, you tell me why?
Defense counsel responded, "I cannot argue with you at that point,
Your Honor." Sterling falls well short of "demonstrating that the
information cannot be relied upon because it is materially untrue,
60
inaccurate or unreliable." There is no basis upon which to
conclude that the district court's finding was clearly erroneous.
b. Double Jeopardy
Sterling also contends that because the court directed a
judgment of acquittal on Lawrence and Tolliver's conspiracy
convictions, the quantities of drugs involved should not have been
used on his sentence. We find no merit to this argument. Whether
or not the government was prohibited from re-trying Lawrence and
Tolliver on double jeopardy grounds, the government was entitled to
present evidence of the conspiracy against the remaining
defendants. We find no error in the inclusion of this amount in
the determination of Sterling's sentence.
3. Moore
Moore also contends that the district court failed to make the
requisite factual findings as to the amount of cocaine attributable
to or reasonably foreseeable by Moore. The district court made
extensive findings, comprising almost three pages of transcript,
wherein he set forth the evidence supporting his sentencing of
Moore based on in excess of 50 kilograms of cocaine. In summary,
the court stated,
So just seems to me when I look at his activities, his
relationship to the Metz Organization, his conversations,
his notebook, that it's [sic] at least by a preponderance
of the evidence Mr. Moore knew or reasonably should have
been able to foresee that the Metz Organization with
which he was involved and convicted as a conspirator was
dealing in cocaine in excess of fifty kilos. And so
accordingly, that's what I find that as to Moore at least
as much as charged in the indictment, probably more. And
the indictment specifically mentions fifty-seven kilos in
Count One and it's at least that much and I think that is
the minimum amount.
61
(emphasis supplied). As suggested by the district court, the
evidence shows that Moore was personally involved with in excess of
fifty kilograms of cocaine. We have no difficulty in affirming the
district court's determination that Moore personally knew or, at
least could reasonably foresee that the Metz organization engaged
in the distribution of at minimum fifty kilograms of cocaine during
Moore's involvement in the conspiracy.
B. Sentencing on Count One Conspiracy
Arthur claims that the district court erred in sentencing him
to life on the count one conspiracy in accordance with the multiple
count sentencing guidelines U.S.S.G. §§ 3D1.1 and 5G1.2. Instead,
Appellant contends that his sentence on the count one conspiracy
should have been 155 to 188 months in accordance with the relevant
conduct provisions contained in U.S.S.G. § 1B1.3. However,
Appellant concedes that the sentence on the count one conspiracy is
moot if we affirm the sentences on counts nine and ten. Because,
as discussed below, we affirm the district court's imposition of
life sentences on counts nine and ten, we do not address
Appellant's argument regarding the life sentence on count one.
C. Sentencing on Count Nine and Ten Racketeering Charges
Arthur and Helmstetter argue that the district judge erred in
sentencing them to life imprisonment on the count nine and ten
racketeering charges under 18 U.S.C. § 1959(b)(1) and § 1961(1).
Appellants contend that the indictment charged that the underlying
crimes were murders in the second degree under Louisiana law, and
that the district court should have used the federal guideline for
62
second degree murder to determine their base offense level. All
parties agree that the starting point in the sentencing analysis is
U.S.S.G. § 2E1.3 which provides that the base offense level for a
conviction under 18 U.S.C. § 1959 shall be the greater of "12" or
"the offense level applicable to the underlying crime or
racketeering activity." Application note one provides "[i]f the
underlying conduct violates state law, the offense level
corresponding to the most analogous federal offense is to be used."
Thus, the district court was bound to determine the federal
offense most analogous to the underlying conduct. We next turn to
the language of the indictment. In relevant part, count nine
provided,
On or about April 5, 1990, in the Parish of
Jefferson, within the Eastern District of Louisiana, for
the purpose of maintaining and increasing position in an
enterprise engaged in racketeering activity as defined in
Title 18, United States Code, Sections 1959(b)(1) and
1961(1), the defendants GERALD ELWOOD, a/k/a "Nap", a/k/a
"Keith McCoy", a/k/a "Homey", GENNERO ARTHUR, a/k/a
"Meatball", and MARLO HELMSTETTER, a/k/a "Lo", together
with other persons unknown to the Grand Jury, did
knowingly and intentionally murder and did aid and abet
the murder of Michael Wilson by shooting him with a
firearm in violation of the laws of the State of
Louisiana, that is, Title 14, Louisiana Revised Statutes,
Section 30.1; all in violation of Title 18, United States
Code, Sections 1959(a)(1) and 2.
(emphasis supplied). With the exception of the substitution of
"Donna Ellis" for "Michael Wilson," count ten was identical. Next,
we compare the underlying state law with the analogous federal
provision.
Louisiana defines second degree murder as follows:
A. Second degree murder is the killing of a human
being:
63
(1) when the offender has a specific intent
to kill or to inflict great bodily harm.
La. Rev. Stat. Ann. § 14:30.1 (West Supp. 1995)(emphasis supplied).
The United States Code defines murder as follows:
(a) Murder is the unlawful killing of a human being with
malice aforethought. Every murder perpetrated by poison,
lying in wait, or any other kind of willful, deliberate,
malicious, and premeditated killing; or committed in the
perpetration of, or attempt to perpetrate, any arson,
escape, murder, kidnapping, treason, espionage, sabotage,
aggravated sexual abuse or sexual abuse, burglary, or
robbery; or perpetrated from a premeditated design
unlawfully and maliciously to effect the death of any
human being other than him who is killed, is murder in
the first degree.
Any other murder is murder in the second degree.
18 U.S.C. § 1111 (emphasis supplied). As stated by the district
court, first degree murder is the federal crime most analogous to
the Louisiana second degree murder statute.46
Nonetheless, Appellants assert United States v. McCall47 for
the proposition that because the Louisiana offense of second degree
murder is the "offense of conviction," the most analogous federal
crime is second degree murder. Appellants' interpretation belies
both the holding in McCall and the plain reading of the guidelines.
The sentence in McCall was overturned because the indictment did
not specify "intent," and therefore "intent" was not an element of
46
See United States v. Minicone, 960 F.2d 1099, 1110 (2nd Cir.
1992), cert. denied, 503 U.S. 950, 112 S.Ct. 1511 (1992)(Most
analogous federal offense to second degree murder conviction
under New York law was first degree murder); United States v.
Paden, 908 F.2d 1229, 1238 (5th Cir. 1990)(Most analogous offense
to state law arson offense was second degree murder).
47
915 F.2d 811, 814-15 (2nd Cir. 1990).
64
the offense charged.48 In the instant case, intent is an element of
the offense charged, and therefore McCall is not persuasive.49 In
addition, the language of the guidelines instructs the court to
compare the conduct, not the titles of the statutes cited. As
pointed out by the district court, different states have different
labels for the same crime,
[t]herefore, depending upon which state murder statute is
charged as the underlying offense of "premeditated murder
or killing with specific intent," inconsistent sentences
for identical illegal conduct would be imposed in
different states if the base offense level was computed
merely by looking at the "label" of such statute and
having that label be determinative of the most analogous
federal offense, rather than looking at the actual
substance of the underlying state statute to determine
the most analogous federal offense.
The district court properly compared the "substance" of the
underlying offense, and did not err in concluding that first degree
murder was the most analogous federal offense.
D. Consecutive Sentences on Gun Counts
48
See McCall, 915 F.2d at 814-15,
The government contends that "[t]wo separate
offense guideline sections, [Sections 2A1.1 and 2A2.2]
cover the criminal conduct charged in the information."
That is wrong. The information does not charge McCall
with the essential element of intent to commit murder.
The district court found as a fact at the sentencing
hearing that McCall's acts showed a "depraved
indifference to human life, and therefore an intent to
murder." That fact is irrelevant to selecting the
applicable Guidelines section, however, because that
section must be determined by the offense of
conviction.
49
We do not decide whether an element of the crime has to be
included in the indictment to be considered in determining the
most analogous federal crime.
65
Sterling contends, and the government correctly concedes, that
under our precedent he was improperly sentenced to three
consecutive 60 month terms under 18 U.S.C. § 924(c). United States
v. Privette, 947 F.2d 1259, 1262-63 (5th Cir. 1991)(citations
omitted), cert. denied, 503 U.S. 912, 112 S.Ct. 1279 (1992). It is
plain that the three § 924(c) charges were each predicated on the
count one conspiracy and therefore the sentence violates our ruling
in Privette. While the government suggests that we may wish to
reconsider our ruling in Privette in light of more recent rulings
by the Fourth50 and D.C. Circuits,51 any reconsideration of Privette
is a task for the en banc court on another day.52 We are bound by
our prior holding and in accordance with the procedure set forth
therein, we vacate the sentences and remand with instructions that
two of the § 924(c) counts, as elected by the government, be
dismissed and Sterling be resentenced. See Privette, 947 F.2d at
1263.
XIII. INEFFECTIVE ASSISTANCE OF COUNSEL
Moore and Glenn Metz contend that their respective trial
counsel ineffectively represented them. Specifically, Moore
contends that his trial counsel failed to raise his juvenile status
50
United States v. Camps, 32 F.3d 102, 106-08 (4th Cir. 1994).
51
United States v. Anderson, 39 F.3d 331, 353-57 (D.C.Cir.
1994).
52
We note that our prior holding falls in the majority of
circuits that have spoken on this issue. The holdings of the
Second, Ninth, Tenth and Eleventh Circuits are consistent with
our jurisprudence, while the D.C., Fourth and Sixth Circuits
adopt the view that multiple § 924(c) counts may be charged for
separate incidents occurring within the same conspiracy.
66
as a jurisdictional bar to his trial. Metz, on the other hand,
provides a veritable laundry list of alleged deficiencies
including, inter alia, that his attorney: (1) improperly handled
his motion to suppress; (2) was not available to him; (3) failed to
file certain unspecified motions; (4) used poor trial strategy; (5)
failed to move for a change of venue or recusal of the judge; (6)
failed to submit voir dire questions regarding racial prejudice;
(7) failed to request jury sequestration; (8) lacked familiarity
with the rules of evidence; (9) failed to request certain
unspecified jury instructions; (10) failed to object to the court's
money laundering instruction, (11) abandoned him at the sentencing
proceedings, thereby resulting in improper multiple sentences on
his CCE and conspiracy convictions. None of Appellants' claims
were raised before the district court.
The general rule in this circuit is that we will not address
ineffective assistance of counsel claims on direct appeal unless
they have been raised before the district court. See United States
v. McCaskey, 9 F.3d 368, 380 (5th Cir. 1993), cert. denied, 114
S.Ct. 1565 (1994). "Exception to this general rule is made only if
the record is sufficiently developed with respect to the merits of
the claim." Id. at 381. Our standard of review on an ineffective
assistance of counsel claim is well settled. To prove ineffective
assistance, the appellant must show that "(1) the attorney's
representation fell below an objective standard of reasonableness;
(2) there is a reasonable probability that except for the
attorney's unprofessional errors, the results of the proceeding
67
would have been different." United States v. Kinsey, 917 F.2d 181,
183 (5th Cir. 1990), citing, Strickland v. Washington, 466 U.S.
668, 687-88, 694, 104 S.Ct. 2052, 2064-65, 2068 (1984).
A. Moore
We find that the record is sufficient to evaluate Moore's
claim that his counsel was ineffective for failing to raise the
jurisdictional implications of his juvenile status. However, as
discussed above in Section II.D., the district court had
jurisdiction to try Moore as an adult. Therefore, Moore cannot
satisfy either prong of the Strickland test.
B. Glenn Metz
The majority of Metz's claims, though facially specious, are
not sufficiently developed either in Appellant's brief or on this
record, and therefore not the proper subject of review on direct
appeal. However, two issues can be disposed at this time. First,
Appellant claims that his counsel was ineffective for failing to
file a Batson challenge. As discussed above in Section III.B.,
Danielle Metz's counsel lodged a Batson challenge on behalf of all
Appellants, that was properly denied by the trial court. Appellant
cannot satisfy either prong of the Strickland test on this claim.
Second, Appellant claims that his counsel "abandoned" him at
sentencing, and, as a result, he was improperly sentenced on both
the count one conspiracy and the CCE count. The law is well
settled on this issue. In Jeffers v. United States,53 the Supreme
Court found that conspiracy was a lesser included offense of a CCE
53
432 U.S. 137, 157-58, 97 S.Ct. 2207, 2219-20 (1977).
68
charge. See United States v. Devine, 934 F.2d 1325, 1342 (5th Cir.
1991). Therefore, while a defendant may be indicted for a
conspiracy and a CCE, he may not be sentenced on both charges. As
we have stated previously, the proper remedy in this situation is
to vacate Metz's conviction and sentence on the count one
conspiracy.54 Id. at 1343.
However, Appellant's contention that his attorney's failure to
object to the sentence deprived him of effective assistance of
counsel is without merit. As noted in footnote 54, the dual
sentencing is of no real consequence in this circumstance.
Therefore, Appellant cannot establish the second prong of the
Strickland test.
Appellant's remaining contentions are dismissed, without
prejudice, as not ripe for appellate review.
XIV. CONCLUSION
We vacate Sterling's multiple sentences on the § 924(c) counts
and remand with instructions that two of the counts, as elected by
the government, be dismissed and Sterling be resentenced. We also
vacate Glenn Metz's conviction and sentence on the count one
conspiracy, and dismiss those portions of his appeal, related to
his ineffective assistance of counsel claim, that are not directly
54
We note that Danielle Metz's was also improperly sentenced
on the count one conspiracy for the same reason, however, she did
not raise the issue on appeal and we are without appellate
jurisdiction to address the issue. However, since both Danielle
and Glenn Metz are serving life sentences on the CCE, the
concurrent life sentences on the conspiracy count are of no real
consequence.
69
addressed herein without prejudice. In all other respects, the
district court is affirmed.
AFFIRMED in part, VACATED in part, DISMISSED in part and
REMANDED in part for resentencing.
70