U.S. v. Hoelscher, s. 89-2973
| Decision Date | 29 October 1990 |
| Docket Number | Nos. 89-2973,s. 89-2973 |
| Citation | 914 F.2d 1527 |
| Parties | UNITED STATES of America, Appellee, v. Clayton HOELSCHER, Appellant. UNITED STATES of America, Appellee, v. Mickie James MERIWETHER, Appellant. UNITED STATES of America, Appellee, v. Joseph HAAG, Appellant. UNITED STATES of America, Appellee, v. Steven Carl McGIRT, Appellant. UNITED STATES of America, Appellee, v. Michael MOIT, Appellant. UNITED STATES of America, Appellee, v. Alfred GIUFFRIDA, Appellant. through 89-2975, 89-3017, 89-3064, 90-1101. |
| Court | U.S. Court of Appeals — Eighth Circuit |
N. Scott Rosenblum, St. Louis, Mo., for appellant Hoelscher.
James C. Delworth, St. Louis, Mo., for appellant Meriwether.
John E. Bardgett, St. Louis, Mo., for appellant Haag.
Stephen J. Nangle, St. Louis, Mo., for appellant McGirt.
Carl F. James, Wentzville, Mo., for appellant Moit.
Stephen H. Gilmore, St. Louis, Mo., for appellant Giuffrida.
Michael Reap, St. Louis, Mo., for appellee.
Before FAGG and BEAM, Circuit Judges, and WOODS, * District Judge.
The appellants in these consolidated appeals were members of a cocaine distribution ring operating in the St. Louis area, with supply connections in California. Other than the appellants, indictments were secured against Michael Salsman, Dianna Bilyeu and Donald Mantro who pled guilty to drug offenses in connection with activities of the group. Appellant Giuffrida also pled guilty but now appeals, alleging errors in sentencing and in denying his motion to withdraw his guilty plea. The other five appellants entered not guilty pleas and were tried jointly before a jury in the United States District Court for the Eastern District of Missouri. 1 On September 1, 1989, guilty verdicts were returned against appellants Michael Moit, Joseph Haag, Steven Carl McGirt, Mickie Meriwether and Clayton Hoelscher, and sentences were imposed ranging from 78 months to 120 months. Giuffrida received 220 months on his guilty plea. All filed separate appeals and are represented by separate counsel. Since they raise different grounds for reversal, along with some common grounds, the points raised by each will be discussed, infra, along with the specific statutory offenses charged against each appellant. We note, however, at the outset that no prejudicial error is found in the conduct of this lengthy trial and affirm the judgment of conviction as to all six appellants.
The success of the prosecution in this case is due in large measure to the activities of Frank Bennett, a confidential informant who began cooperating with the Federal Bureau of Investigation and Internal Revenue Service in the fall of 1988. On November 17, 1988, Bennett, an employee of Michael Salsman, saw Giuffrida give Salsman a kilo of cocaine, after which Bennett drove Salsman to Moit's house to break up and weigh it since Moit had a scale. Salsman told Bennett later that Moit had received six ounces of the cocaine. The next day Salsman delivered cocaine to a number of other individuals including appellant Clayton Hoelscher at his bar in Troy, Missouri. Three days later on November 21, 1988 Bennett observed Hoelscher giving Salsman $5,000 in cash, which coincided with a bank withdrawal of an identical amount by Hoelscher on the same date.
On December 10, 1988, Bennett saw Salsman pay Giuffrida $10,000 for a kilo of cocaine. Again Bennett and Salsman went to Moit's house to break up the cocaine, which was distributed to other dealers. Salsman told Bennett that Moit received eight ounces of the cocaine. Bennett did not observe any delivery to Hoelscher after the transaction. Salsman received $4,500 from Hoelscher during this time frame.
Salsman received a third kilogram from Giuffrida on January 13, 1989. The same visit to Moit's house was made by Bennett and Salsman. Bennett observed the breaking of the cocaine into smaller packages and its weighing. Moit kept six ounces and the remainder was distributed to others including Hoelscher.
On January 19, 1989 Bennett recorded a conversation between Moit and Salsman in which Salsman remarked that Clay Hoelscher wanted 20 more ounces of cocaine. Moit complained that one of his customers, who owed him $2,800, lost these funds in a burglary and could only pay $500. He also complained about a competitor undercutting him on price in Wright City, Missouri. Moit also mentioned trading an ounce of cocaine for $2,000 in repairs on his truck. On the next day Bennett recorded a conversation with Haag and Salsman in which Haag expressed admiration for the boldness of black cocaine dealers and the quality of their product.
While Salsman was contemplating a trip to California for a supply of cocaine, Bennett recorded a conversation on January 30, 1989 between Salsman and Hoelscher in which the latter suggested a source in Columbia that might obviate a California buy. The Columbia buy did not materialize and plans were made by Salsman to obtain three to five kilograms of cocaine in California.
Giuffrida contributed $45,000 to this buy. Others contributed $21,000, including Mantro, one of the co-conspirators who entered a guilty plea. On February 7, 1989, Salsman sent Bennett to California in a rented Winnebago with $65,000 concealed inside the panelling. In Los Angeles Bennett was to meet Salsman, Haag, who was to receive some of the cocaine, and "Cedric," a black male who was to assist in making the California buy. While en route to California on February 9, 1989, Bennett talked by telephone to Salsman and Haag, who had flown to Los Angeles and were at the Viscount Hotel. He learned that "Cedric" had failed to arrange the drug buy and had been beaten up for his efforts. "Cedric" was sent back to St. Louis.
Haag persuaded Salsman to remain in Los Angeles and develop another source. He suggested that appellant McGirt, back in St. Louis, had a cocaine source in Los Angeles. On February 10, 1989 Bennett, Haag and Salsman checked into Room 2169 of the Airport Marriott Hotel, from which Haag contacted McGirt and convinced him to come to Los Angeles.
A Los Angeles deputy sheriff saw Salsman, Haag, McGirt and appellant Meriwether meet at the airport on February 10, 1990. McGirt checked into Room 2167 at the Airport Marriott. On February 11, 1989 Bennett met with McGirt, Haag and Salsman. Haag snorted some cocaine given to him by McGirt, which the latter had obtained from Meriwether. Salsman instructed Bennett to retrieve the money from the Winnebago, and $60,000 was counted by Bennett, Haag, Salsman and McGirt and given to McGirt. A surveillance by the Los Angeles sheriff's department traced McGirt to a meeting with Meriwether prior to the their driving away in a maroon/black Cadillac, a vehicle again observed at the time a search warrant was executed on Meriwether.
Salsman, Haag, McGirt and McGirt's girl friend returned to St. Louis. Meriwether delivered the cocaine to Bennett along with $6,500, of which $760 was returned to Meriwether. Bennett drove back to St. Louis with the money and the cocaine. He contacted Haag and set up a meeting at the Henry VIII Inn, St. Louis for February 15, 1989. The meeting was monitored by audio and video tapes. At this meeting Salsman and Haag tasted the cocaine. Haag mentioned that Giuffrida had an additional $45,000. He was concerned about a possible theft if they continued "fronting the money." He also mentioned telling his people about the cocaine and referred to his brother as having a triple beam scale. When Haag and Salsman left, the latter had physical possession of a kilo of the cocaine and the money returned to Bennett by Meriwether. They were immediately arrested. Subsequently Giuffrida came to the Henry VIII Inn with Dianna Bilyeu, whom he had designated to pick up his share of the cocaine. They were arrested upon their departure. After the execution of a search warrant on his residence in Los Angeles, appellant Meriwether was arrested on February 15, 1989.
In Count I of the indictment the appellants, along with Michael Salsman, Donald Mantro and Dianna Bilyeu, were indicted for violation of Title 21 U.S.C. Sec. 846 (). In Count II Salsman was indicted for an additional violation of distribution of cocaine. Along with McGirt, Salsman and Haag were charged with violation of Title 18 U.S.C. Sec. 1952(a)(3) in Count III (interstate transportation in Aid of Racketeering). Haag and Salsman were charged in Count IV with violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B)(ii)(II) () and in Count V for violation of the same section by distributing 4.4 pounds of cocaine on the same date. Alfred Giuffrida and Dianna Bilyeu were charged in Count VI with violation of the same section by possession of 4.4 pounds of cocaine with intent to deliver. Salsman was charged in Count VII with violation of 21 U.S.C. Sec. 848 (continuing criminal enterprise) and in Count VIII for filing a false tax return in violation of Title 26 U.S.C. Sec. 7206(1).
Prior to trial Salsman pled guilty to the continuing criminal enterprise and tax violation (Counts VII and VIII) and received a sentence of 280 months. Alfred Giuffrida pled guilty to Count VI as did Dianna Bilyeu. The former received a sentence of 220 months and the latter 63 months. Prior to trial Donald Mantro pled guilty to a superseding felony information and received a sentence of 41 months.
A recitation of the above facts which are supported by substantial evidence demonstrates that each of the appellants was deeply involved in a conspiracy to distribute large quantities of cocaine. Giuffrida, Salsman and Haag provided directions for the conspiracy and furnished the operating funds. Hoelscher and Moit were middlemen and wholesalers in the chain of distribution,...
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