61 F.3d 1189 (5th Cir. 1995), 93-3873, United States v. Tolliver

Docket Nº:93-3873, 93-3877.
Citation:61 F.3d 1189
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Sylvester TOLLIVER, Gerald Elwood, Danielle Bernard Metz, Gennero Arthur, Noah Moore, Jr., Marlo Helmstetter, Glenn Metz, and Shane Sterling, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Noah MOORE, Jr., Defendant-Appellant.
Case Date:August 14, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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61 F.3d 1189 (5th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Sylvester TOLLIVER, Gerald Elwood, Danielle Bernard Metz,

Gennero Arthur, Noah Moore, Jr., Marlo

Helmstetter, Glenn Metz, and Shane

Sterling, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee,

v.

Noah MOORE, Jr., Defendant-Appellant.

Nos. 93-3873, 93-3877.

United States Court of Appeals, Fifth Circuit

August 14, 1995

        Rehearing Denied Oct. 19, 1995.

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        Frank Sloan (court-appointed), Covington, LA, for Tolliver.

        Patrick Fanning (court-appointed), New Orleans, LA, for Elwood.

        Raymond McGuire (court-appointed), New Orleans, LA, for D. Metz.

        Virginia Schlueter, Asst. Federal Public Defender, John T. Mulvehill, Federal Public Defender, New Orleans, LA, for Arthur.

        John H. Musser, IV (court-appointed), New Orleans, LA, for Helmstetter.

        Glenn Metz, Terre Haute, IN, pro se.

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

        Marilyn Gainey Mitchell, Justice Dept., Crim. Div., Washington, DC, for U.S.

        M. Craig Colwart, New Iberia, LA, Franklin, LA, New Orleans, LA, for Moore.

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

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

        Before LAY 1, DUHE and DeMOSS, Circuit Judges.

        DUHE, Circuit Judge:

        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 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,

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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

  1. 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.

            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. Pierce 3 and United States v. Koenig, 4 for the proposition that, as the sender of letters via United States mail, he had a 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

  2. 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

            "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

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    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 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, 73 L.Ed.2d 1369 (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...

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