U.S. v. Metzger

• Decision Date: 13 December 1985
• Docket Number: No. 84-5804,84-5804
• Parties: 19 Fed. R. Evid. Serv. 695 UNITED STATES of America, Plaintiff-Appellee, v. Ronald Willet METZGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1195

778 F.2d 1195

19 Fed. R. Evid. Serv. 695

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Willet METZGER, Defendant-Appellant.

No. 84-5804.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 1, 1985.

Decided Dec. 13, 1985.

Allen W. Holbrook, argued, court appointed, Holbrook, Gary, Wible & Sullivan, Owensboro, Ky., for defendant-appellant.

Louis DeFalaise, U.S. Atty., Barbara E. Edelman, John M. Compton, argued, Lexington, Ky., for plaintiff-appellee.

Before KRUPANSKY and MILBURN, Circuit Judges, and NEESE, Senior (Retired District) Judge ^*.

MILBURN, Circuit Judge.

Defendant appeals his jury convictions for transporting explosives in interstate commerce with intent to kill or injure, destruction of a vehicle used in interstate commerce, possession of an unregistered firearm, and making a destructive device without payment of the required making tax. Defendant argues that the trial court erred in (1) failing to suppress items seized from the vehicle, (2) failing to dismiss the indictment because the government failed to allege essential elements of the offenses, (3) admitting into evidence documents regarding the manufacturing situs of certain explosives and the registration of alleged destructive devices, (4) admitting into evidence the results of scientific tests performed on residue from the destroyed vehicle, (5) admitting into evidence both the results and the videotape of an explosion on a demonstration vehicle, (6) failing to voir dire the jury concerning their exposure to mid-trial publicity, and (7) in imposing consecutive sentences. Defendant also argued insufficiency of evidence on several elements of the crimes. For the reasons that follow, we affirm in part and reverse in part.

I.

On August 22, 1979, defendant's wife, Dorothy Jane Metzger, and her ten-year old son, Billy, were killed as a result of an explosion inside the automobile in which they were riding. The facts developed at trial showed that earlier that day Mrs. Metzger had driven to Lexington, Kentucky, where she made several stops. Most notably, Mrs. Metzger purchased ten (10) sticks of Hercules dynamite and five (5) Hercules blasting caps, apparently at the direction of her husband. Mrs. Metzger, who operated a small gift shop, also made a Seventy-eight and 31/100 Dollar ($78.31) purchase from a craft shop in Lexington. Both the explosives and the materials from the craft shop were manufactured outside of Kentucky.

Later that day Mrs. Metzger met her husband, defendant Ronald Willet Metzger, and her son and daughter of a previous marriage for supper in Lexington, following which the Metzgers traveled home. Mrs. Metzger and her son, Billy, rode in one car while Mr. Metzger and Mrs. Metzger's daughter, Tina, rode in another. Defendant and Tina arrived home first. The explosion that killed Mrs. Metzger and Billy occurred approximately four hundred (400) yards from their home at the only spot in the rural road visible from the Metzgers' home.

In an effort to determine the cause and origin of the explosion, law enforcement officers obtained materials with explosive residues both at the scene on the night of the explosion and at the Kentucky State Police post at Richmond the next morning. Subsequent scientific analysis revealed that no explosive residue from Hercules dynamite On February 1, 1984, a federal grand jury returned a five-count indictment against defendant. Count 1 was severed and subsequently dismissed. Thereafter, the case proceeded to trial on Counts 2 through 5. (See Appendix for wording of Counts 2 through 5.) At trial, a government witness testified that defendant told him that he had "switched" the dynamite which caused the explosion and that he, the defendant, had to be the first person to the site of the explosion. According to the witness, defendant had also explained why he had killed his wife and stated he had no choice as to his stepson.

was present in any sample taken from Mrs. Metzger's car but that monomethylamine nitrate (MMAN), which exists only in DuPont's Tovex, was present.

During the investigation agents of the Alcohol, Tobacco & Firearms Bureau ("ATF") exploded an automobile of the same make and model as Mrs. Metzger's using ten (10) sticks of Hercules dynamite. An inaudible videotape of that explosion was shown to the jury, and, based in part on this demonstration, an ATF agent testified that the fatal explosion was the result of the intentional detonation of an improvised explosive device and not the result of any accident or other unintentional cause.

On August 23, 1984, the jury returned a verdict of guilty on all four remaining counts. In a judgment rendered the same day the district court sentenced defendant to two life sentences and two ten-year sentences and ordered that the sentences be served consecutively.

II.

A. Search of Automobile

Defendant's first argument is that certain pieces of evidence, exhibits 18 through 23, were seized in violation of his fourth amendment rights and, therefore, should have been suppressed at trial. The challenged exhibits were samples taken from Mrs. Metzger's car the morning after the explosion. Two of the exhibits, 18 and 20, were subsequently discovered to contain traces of MMAN. The only other exhibit discovered to contain MMAN, exhibit 17, has not been challenged by defendant. These exhibits were important to the government's case because MMAN is not found in Hercules dynamite, the type which Mrs. Metzger had purchased, but is present only in Tovex.

In arguing that exhibits 18 and 20 were improperly seized defendant notes the following facts. At approximately 1:15 a.m. on August 23, 1979, ATF Special Agent John Simms took several samples from the Metzger vehicle, including exhibit 17. The vehicle was then towed to the Kentucky State Police Post in Richmond where at approximately 7:45 a.m. Special Agents Rapier and Beam continued the investigation and obtained exhibits 18 and 20. ¹

Defendant and the government agree that the initial intrusion by ATF agents was constitutionally permissible. However, defendant argues that "such warrantless entries are only valid for the initial entry and any subsequent entries, once the exigency has passed, must meet the standards for either an administrative or a criminal warrant." Brief of Defendant-Appellant at 8. We disagree.

The explosion of a vehicle clearly creates an exigency justifying a warrantless entry by police, fire, and rescue workers. It is equally clear that once on the scene of an explosion "officials need no warrant to remain for 'a reasonable time to investigate the cause of the [explosion].' " Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 646-47, 78 L.Ed.2d 477 (1984) (emphasis in original) (footnote omitted) (quoting Michigan v. Tyler, 436 U.S. 499, 510, 98 S.Ct. 1942, 1950, 56 L.Ed.2d 486 (1978)).

The fact that the investigators did not remain with the vehicle while it was being removed from the scene, but instead made what is the equivalent of a "re-entry," does not change the result. Rather, "[t]he critical inquiry is whether reasonable expectations of privacy exist in the ... damaged premises at a particular time...." Clifford, 104 S.Ct. at 646 n. 3. A determination of whether defendant had a reasonable expectation of privacy is, of course, made by looking at the totality of the circumstances.

In the instant case defendant testified that the vehicle was registered in his name. It is well-settled, however, that ownership interest is only one fact to be considered and standing alone will not give defendant a reasonable expectation of privacy. See Rawlings v. Kentucky, 448 U.S. 98, 105-07, 100 S.Ct. 2556, 2561-62, 65 L.Ed.2d 633 (1980). Moreover, it is instructive that the vehicle was considered "Jane Metzger's personal vehicle." Brief of Defendant-Appellant at 3; see also id. at 33. We fail to see how defendant, absent more than an ownership interest, had a reasonable expectation of privacy in his wife's personal vehicle.

We further note that the condition of the vehicle following the explosion is an appropriate consideration in determining the extent of defendant's expectation of privacy. Cf. Clifford, 104 S.Ct. at 646 ("[s]ome fires may be so devastating that no reasonable privacy interests remain in the ash and ruins...."). Pictures of the vehicle taken after the explosion show that it was virtually demolished. Although the record reflects that the vehicle was a 1977 Plymouth Volare station wagon, it is difficult to discern that by looking at pictures of the remains of the vehicle. Mrs. Metzger's vehicle was reduced to little more than scrap metal, and defendant's asserted expectation of privacy in the demolished vehicle cannot be characterized as reasonable.

Finally, it is significant that the property at issue was a vehicle. "Privacy expectations will vary with the type of property," Clifford, 104 S.Ct. at 646, and it has long been recognized that "[o]ne has a lesser expectation of privacy in a motor vehicle...." Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974), quoted in United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977).

Accordingly, based on the above factors, we hold that exhibits 18 through 23 were not seized in violation of defendant's fourth amendment rights.

B. Sufficiency of Indictment

Defendant's second argument is that the indictment failed either to include an allegation of the essential elements of the offenses or give him adequate notice of what he was to be prepared to defend against. Specifically, defendant contends that since the indictment did not contain definitions of "explosive," "destructive device," and "interstate commerce," it was invalid. We disagree.

In United States v. Marra, 481 F.2d 1196, 1199 (6th Cir.), cert. denied, 414 U.S. 1004, 94 S.Ct. 361, 38 L.Ed.2d 240 (1973), we adopted the position that

[a]n indictment does not have to be put in the most...