116 F.3d 120 (5th Cir. 1997), 93-3873, United States v. Tolliver

Docket Nº:93-3873, 93-3877.
Citation:116 F.3d 120
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Sylvester TOLLIVER, et al., Defendants, Noah Moore, Jr., Glenn Metz, and Shane Sterling, Defendants-Appellants.
Case Date:June 11, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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116 F.3d 120 (5th Cir. 1997)

UNITED STATES of America, Plaintiff-Appellee,


Sylvester TOLLIVER, et al., Defendants,

Noah Moore, Jr., Glenn Metz, and Shane Sterling,


Nos. 93-3873, 93-3877.

United States Court of Appeals, Fifth Circuit

June 11, 1997

Rehearing Denied July 11, 1997.

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Packard E. Phillips (Court-appointed), New Orleans, LA, for Shane Sterling.

M. Craig Colwart, New Iberia, LA, for Noah Moore, Jr.

Noah Moore, Jr., Manchester, KY, pro se.

Marilyn Gainey Mitchell, Frank Marine, U.S. Department of Justice/OCRS, Criminal Division, Washington, DC, for U.S.

Appeals from the United States District Court for the Eastern District of Louisiana.


Before LAY, 1 DUHE and DeMOSS, Circuit Judges.

DUHE, Circuit Judge:

Defendants were convicted of federal drug offenses arising from a narcotics conspiracy and gang war in New Orleans, Louisiana. Six of these eight Defendants, viz., Gennero Arthur, Gerald Elwood, Marlo Helmstetter, Glenn Metz, Noah Moore, Jr., and Shane Sterling, were also convicted of violating 18 U.S.C. § 924(c)(1), which punishes any person who uses or carries a firearm during and in relation to any drug trafficking crime. In United States v. Tolliver, 61 F.3d 1189 (5th Cir.1995), we, inter alia, affirmed Defendants' firearms convictions. We revisit this case today on remand from the Supreme Court to determine whether Defendants' firearms convictions survive Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). For reasons that follow, we affirm in part, vacate in part, and reverse and remand in part.


Arthur, Elwood, Helmstetter, Moore, and Sterling each occupied the positions of gunman, enforcer, and firearms procurer/storer in the Metz Organization. Metz led this drug organization. Their firearms convictions are based upon the following facts: (1) Arthur was convicted for possession of a

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loaded Mac 11 9 mm. pistol and a loaded Mini 14 .223 caliber assault rifle, both recovered from his vehicle after a police chase (count 13); (2) Metz was convicted for his vehicular possession of two loaded semi-automatic .380 pistols (count 14); (3) Helmstetter was convicted for possession of a 9 mm. semi-automatic pistol incident to his arrest (count 15); (4) Elwood was convicted for possession of two .38 caliber revolvers, three rifles, and a semi-automatic pistol, all recovered during two searches of his residence (counts 16 and 17); (5) Sterling was convicted for (a) possession of several loaded firearms, including two semi-automatic pistols and two assault rifles, several loaded high-capacity magazines, and extra ammunition--all recovered in the apartment he shared with Moore and all in proximity to drug paraphernalia, drug records, and receipts indicating Sterling's ownership of certain of the firearms, and (b) his act of reaching for a nearby loaded .40 caliber semi-automatic pistol when federal agents entered his room (count 22); 2 and (6) Moore was convicted for possession of several loaded firearms, including a loaded drum magazine capable of providing rapid firepower of ninety additional rounds, found in proximity to drug records and other drug paraphernalia in his apartment. (count 22). Drugs were not found on or near these Defendants contemporaneously with the seizure of these firearms.

In Tolliver, 61 F.3d at 1218, we affirmed Defendants' firearms convictions based upon these facts. The Supreme Court granted Sterling's and Moore's subsequent petitions for writ of certiorari, vacated the judgments on their § 924(c)(1) convictions, and remanded to this Court for further consideration in light of Bailey. Pursuant to Bailey, Metz moved this Court to recall the mandate in his case to allow his contest of his firearms conviction. Arthur, Elwood, and Helmstetter did not petition for certiorari, and this Court's mandate therefore issued as to them. They have neither requested recall of the mandate nor made any other request for relief.



Before reaching the merits, we must first consider Metz's motion to recall the mandate. Metz contends that our disposition of his firearms conviction directly conflicts with the Supreme Court's subsequent decision in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). We agree, as discussed in Part II below, and thus order the mandate recalled.

Our authority to recall our own mandate is clear. Under Rule 41.2 of the Fifth Circuit Rules, we may recall our mandate if necessary in order to prevent injustice. An example of such an injustice is when a subsequent decision by the Supreme Court renders a previous appellate decision demonstrably wrong. See, e.g., Greater Boston Television Corp. v. F.C.C., 463 F.2d 268, 278 n.12 (D.C.Cir.1971). Bailey squarely fits this description. Recalling the mandate is also appropriate "where there is a danger of incongruent results in cases pending at the same time." See American Iron & Steel Inst. v. Environmental Protection Agency, 560 F.2d 589, 594 (3d Cir.1977); see also Greater Boston, 463 F.2d at 278-79. Failure to recall the mandate as to Metz would result in such incongruity. This Court's opinion in Gradsky v. United States, 376 F.2d 993, 995 (5th Cir.1967), which presents a procedural posture analogous to our own, is instructive. In Gradsky, this Court was faced with nine codefendants, five of whom petitioned the Supreme Court for writs of certiorari, were granted writs, and to whom the mandate was stayed, and four of whom failed to seek further review and as to whom mandate issued. 3

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