U.S. v. Metz

• Decision Date: 10 December 1979
• Docket Number: No. 78-5621,78-5621
• Citation: 608 F.2d 147
• Parties: 5 Fed. R. Evid. Serv. 876 UNITED STATES of America, Plaintiff-Appellee, v. Walter METZ and Ronald D. Schiller, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 147

608 F.2d 147

5 Fed. R. Evid. Serv. 876

UNITED STATES of America, Plaintiff-Appellee, v. Walter METZ and Ronald D. Schiller, Defendants-Appellants.

No. 78-5621.

United States Court of Appeals Fifth Circuit.

Dec. 10, 1979.

Rehearing and Rehearing En Banc Denied Feb. 14, 1980.

William M. Moran, Thomas G. Murray, George D. Gold, Miami, Fla., for metz.

Richard E. Young, Dallas, Tex. (Court-appointed), for Schiller.

Shirley Baccus-Lobel, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Texas.

Before FAY, RUBIN and HATCHETT, Circuit Judges.

FAY, Circuit Judge:

Ronald Schiller and Walter Metz were convicted in the District Court for the Northern District of Texas of conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 846 (1976). Their points on appeal emanate primarily from the illicit confederation's magnitude of time, geography, and cast. Schiller complains that delay ensuant to the coordination of multiple defendants' prosecutions

violated his right to a speedy trial. Both Schiller and Metz contend that indictment and proof of a single complex conspiracy rather than multiple conspiracies created reversible errors in joinder of defendants, variance between indictment and evidence, admission of alleged coconspirators' extrajudicial statements, and the trial court's charge to the jury. Additionally, Metz challenges the sufficiency of evidence showing his participation in the far-reaching scheme, and asserts that even the evidence tending to implicate him was unlawfully seized in an illegal search of his home. Metz also argues that the trial court improperly refused to compel purportedly exculpatory testimony from a coconspirator who invoked the constitutional privilege against self-incrimination. Finally, Metz complains that the prosecutor's closing argument, characterizing Metz as a "dope pusher" active throughout the scope of the conspiracy, was inflammatory and unsupported by any evidence. We have reviewed these several complaints in detail. Finding no reversible error, we affirm the convictions of both appellants.

FACTS

Posing as a large-scale narcotics supplier, federal Drug Enforcement Administration agent Paul Clayton first met Harold Oldham in Los Angeles, California, in March, 1976. Oldham, the central figure in this complex conspiracy, informed Clayton that he could supply large quantities of cocaine. Not until August, 1977, however, did agent Clayton call Oldham to discuss a possible transaction. From August to November, 1977, Clayton, Oldham and others met in Dallas, Los Angeles, Miami, and the Cayman Islands, to contrive a large cocaine transaction and to plan the laundering of the illegally obtained proceeds. Additionally, Clayton and another agent, Herbert House, consummated with Oldham a smaller preliminary transaction in Miami: on September 17, they exchanged $20,000 for one pound of cocaine. The plans for the larger deal culminated in the events transpiring December 11 through December 14, 1977.

In Dallas on December 11, agents Clayton and House agreed to buy from Oldham forty pounds of cocaine for $850,000. On December 12, they met as agreed at the Calder Holiday Inn near Miami, Florida. Needing time to acquire and mark government funds for the transaction, the agents arranged to plan with Oldham all the details of the exchange the following evening. At 8:00 p. m. on December 13th, Clayton, House, and two other agents met Oldham at the Marriott Motel in Miami. With Oldham were Shirley Ruggiero and John Bland. At one point, Ruggiero offered an immediate exchange of five pounds of cocaine, which was then at her home. Upon the agents' refusal to deal, she remarked that she would have to return the cocaine to the "stash pad" that night.

According to plan, the four undercover agents met Oldham, Ruggiero, and Bland at the Calder Holiday Inn the next morning. Appearing for the first time was appellant Schiller, who accompanied the other sellers. Oldham stayed at the motel until his arrest about 8:30 that night. Schiller, Ruggiero, and Bland (the sellers) travelled with the agents from the motel to the Opa Locka Airport where they inspected $850,000 cash held in a disguised government airplane. After the inspection, Bland stayed at the plane, while Schiller and Ruggiero left to get the cocaine. Surveilling agents determined that Schiller first took Ruggiero to her house and then drove alone to the residence of appellant Metz, where he stayed from 12:45 p. m. to 3:00 p. m. Schiller then returned to Ruggiero's house, picked up Ruggiero and her son, and drove to yet another motel, the Hialeah Holiday Inn, where Bland and the agents had obtained a room for inspecting and testing the cocaine. In the room, Schiller revealed that he had only one pound of cocaine. He proposed that the deal be finished in increments rather than in one exchange, apparently to protect the cocaine supplier from theft. The agents vehemently rejected the proposal, citing the extensive delays that had already occurred throughout the day. Throwing the pound back to Schiller, they insisted on immediate production of the entire forty pounds. Schiller agreed to return to the Taking Bland, Ruggiero, and Ruggiero's son, Schiller drove to appellant Metz's home, where a surveilling agent saw Metz meet them at the door. After a fifteen minute stay, Schiller and the others left, returning to Ruggiero's home around 5:00 p. m. From there Bland telephoned the agents to inform them that they had the five pounds, but that Schiller wanted to exchange one pound first. Reluctantly the agents agreed. Schiller, however, did not proceed directly to the motel where the agents were waiting, but drove back to Metz's. There he stayed for over an hour. Not until 7:15 p. m. did Schiller, Ruggiero, Ruggiero's son, and Bland arrive at the motel room. Again they offered one pound. This time the agents kept the pound, claiming it as compensation for their expense and trouble.

stash pad to seek release of at least five pounds.

Apparently sensing the futility of further negotiation without production of the cocaine, Schiller and the others left. After stopping at a pay phone to place several calls, they turned back toward the motel. Realizing that the four had not procured any more contraband and were not likely to, agents stopped and arrested them around 8:30 p. m.

Sporadic surveillance of Metz's residence throughout the day had revealed little significant activity until late in the evening. Around 10:30 p. m., a woman left Metz's townhouse. She had not driven far when she was stopped by government agents, who acted under their headquarter's instructions to determine whether contraband was being moved from the suspected stash pad. After searching the woman for weapons, the agents searched the car with consent of the woman, who was appellant Metz's wife. The agents found no contraband but nonetheless continued to detain and question Wanda Metz at length, informing her that the townhouse she had just left was a suspected stash pad for a large quantity of cocaine.

Meanwhile, drug enforcement agents at headquarters for the operation had decided to "secure" the Metz residence to prevent destruction of the cocaine suspected to be there. An agent holding Mrs. Metz so informed her and requested that she give them her house key and accompany them to the townhouse. Initially she refused, but agreed to surrender the key and go with them when she realized not only that they were going to secure the residence irrespective of her cooperation, but also that they would take her to jail immediately if she refused.

Upon their return to the townhouse shortly after midnight, one agent took the keys from Mrs. Metz's hand. She asked for them back, but the agent refused. Mrs. Metz then announced, "It's me, and I am with the police." The agent immediately opened the door. Inside were appellant Metz and Mrs. Metz's brother. Although Metz protested the warrantless entry, the agents went inside. They ordered Metz, his wife, and her brother to sit down. Pending issuance of a search warrant, the agents conducted no search, but did seize a lump of cocaine visible on the kitchen floor. Additionally, they observed tracing paper, a heat sealer, and a triple-beam scale on the refrigerator in the kitchen.

Appellant and his wife were taken to the agents' headquarters at 2:00 a. m. Agents remained in the townhouse until daylight, the search time authorized by a warrant issued at 3:30 a. m. At about 7:00 a. m., they conducted a search which netted 2.1 grams of cocaine. Agents found cocaine in the toilet and tub of an upstairs bathroom and in several places in the kitchen downstairs. This contraband the agents seized, along with a roll of paper towels similar to the paper towel which wrapped the pound of cocaine delivered earlier by Schiller.

I. SPEEDY TRIAL

Appellant Schiller contends that delay in his arraignment and trial violated both the Speedy Trial Act, 18 U.S.C. §§ 3161-3174 (1976), and the local speedy trial plan for the Northern District of Texas, which incorporated the statute's deadlines. ¹ Schiller's arrest occurred December On appeal, Schiller contends that the trial court's denial of his motion to dismiss his indictment constitutes reversible error. He concedes that the Act's sanctions were not mandatory at the time of his trial. Id. at § 3163(c). Moreover, the local plan imposed no mandatory dismissal for delay. Speedy Trial Act Plan, III(10)(d). Consequently, only delay violating the sixth amendment would compel dismissal. United States v. Traylor, 578 F.2d 108, 109 (5th Cir. 1978), Cert. denied, 439 U.S. 1074, 99 S.Ct. 848, 59 L.Ed.2d 41 (1979).

14, 1977, and his indictment came 64 days later, February 16, 1978. The statute at that time required indictment within 45 days of arrest. Id. at § 3161(b), (f). His arraignment came fourteen days...