*1
diversity
pumping
constant
of
water became
that,
allegation
“a defective
standard operating procedures.
filed in a
originally
On the ba-
a suit
jurisdiction in
facts,
amended
court can be
sis of these
federal district
district court conclud-
Id.,
As we
at 350.
Appeals.”
Rig
reasonably
Court
ed “that
No. 15 was not
Insurance,
in Firemen’s
pointed out
well-suited for its intended use
an inland
as
terms of 28
by the
is authorized
amendment
drilling
August 15,
See,
barge as of
1974.”
that,
provides
That section
1653.
U.S.C. §
Cargo,
Gulfstream
Ltd. v.
Insur-
Reliance
may
jurisdiction
allegations of
“[defective
reviewing
record,
ance Co. After
we
terms,
the trial or
amended, upon
be
say
cannot
challenged finding
that the
appellate courts.”
clearly
evidentiary
erroneous or without
support. Accordingly, we
find-
sustain the
In-
in Firemen’s
In
our decision
light of
ing.
52(a), Fed.R.Civ.P.;
Rule
Baggett allegations
faulty
surance,
that the
we hold
Richardson,
(5th
1973).
of seaworthiness v. Reliance Cargo, Ltd.
period. Gulfstream 1969).1 Co., Cir. 409F.2d 974
Insurance and its dry-docked Rig 15 had been No. America, UNITED STATES during a six- inspected hull not been Plaintiff-Appellee, During capsize. year preceding the period exposed time, regular was in use it upon an attendant abuse to the normal Schiller, Walter METZ and Ronald D. appellant’s The barge’s operation. inland Defendants-Appellants. one month be testified that expert witness No. 78-5621. effect, he had policy was to take fore the be dry- Rig No. 15 recommended Appeals, States Court of trial court repairs. critical docked for Fifth Circuit. necessary deck vessel lacked that the found compartmental systems, plating, manhole Dec. 1979. Each of plating. separations, and bottom Rehearing Rehearing En Banc functioning prop rig fixtures must be these Denied Feb. integ watertight erly give the vessel the rity also demonstrated requires. it Facts listing or starboard port recurrent Co., Boat Fireman’s Ins. Co. v. Wilburn Fund Fund Fireman's In- Boat Co. v. Wilburn Co., Our 647 n.12 surance acknowledges a federal (1955), require circuit the existence of our L.Ed. 337 does warranty extending implied governed by an policy coverage maritime rule be decision on by hull insurance of seaworthiness to maritime appropriate As noted Louisiana law. Gulfstream; Tropical Co., policy. Products Marine Fruit Justice Harlan Kossick v. Pa., Birmingham (1961), Fire Ins. Co. of 6 L.Ed.2d 1957); recognized Saskatchewan Government in Gulfstream and as this court Park, Spot case, Supreme Ins. F.2d 385 Office v. Court in the final Wilburn rule, light are not this premised application law In state its prevented holding decid- by the Wilburn maritime rule the lack of a federal Wilburn on See, ing presented. with reference to established governing case the matter there warranty governing Co., Cargo federal maritime rules Ins. Ltd. v. Reliance Gulfstream 1969); ns.19, involved. *3 Murray, Moran, G. M. Thomas
William Miami, Fla., Metz. Gold, for George D. Dallas, (Court-ap- Tex. Young, E. Richard pointed), Schiller. for Atty., Baccus-Lobel, Asst. U. S. Shirley Tex., Dallas, plaintiff-appellee. for HATCHETT, FAY, RUBIN Before Judges. Circuit FAY, Judge: Circuit were and Walter Ronald Schiller in District Court convicted conspiracy of Texas Northern District of distribute, possess with intent cocaine (1976). Their violation of U.S.C. § primarily from appeal emanate points on magnitude illicit confederation’s com- time, cast. geography, and Schiller coordina- plains delay ensuant multiple prosecutions defendants’ tion In Dallas on trial. December speedy to a Both right violated his Clayton and House agreed to buy contend that indictment Schiller and Metz from Oldham forty pounds proof single complex $850,000. cocaine of a On conspiracies created multiple rather than 12, they agreed met as defendants, joinder Miami, Calder Holiday reversible errors Inn near Florida. evidence, Needing acquire variance between indictment and govern- time to and mark transaction, ment alleged coconspirators’ admission extra- funds for the arranged statements, plan de- judicial and the trial court’s Oldham all the exchange evening. tails following charge Additionally, Metz jury. p. 13th, At 8:00 Clayton, m. on December challenges sufficiency of evidence show- House, and two other met Oldham far-reaching ing participation at the Marriott Motel Miami. With Old- scheme, that even the evidence asserts Shirley ham Ruggiero John unlawfully tending implicate him was *4 an point, Ruggiero Bland. At one offered illegal seized in an search of his home. exchange pounds immediate of five co- that the trial argues also court im- caine, Upon then at was her home. properly compel purportedly ex- refused to agents’ deal, the to refusal she remarked testimony culpatory coconspirator from a that she to to would have return the cocaine privilege who constitutional invoked the the pad” night. “stash Finally, Metz self-incrimination. complains prosecutor’s closing ar- the According plan, to the four undercover gument, characterizing “dope agents Oldham, Metz as a Ruggiero, met and Bland at pusher” throughout scope Holiday the the morning. active Calder Inn the next Appearing conspiracy, inflammatory unsup- and for the first time appellant was Schiller, ported accompanied who the by any We have reviewed other sellers. evidence. stayed Oldham the at motel until his arrest Finding these several in detail. complaints night. Schiller, about error, 8:30 that Ruggiero, no reversible we affirm the convic- and Bland the travelled with appellants. [the sellers] tions of both agents Opa from the motel to the Locka Airport they inspected $850,000 where cash FACTS government held in disguised airplane. Posing large-scale supplier, as a narcotics After the the inspection, stayed Bland at Drug federal Enforcement Administration plane, Ruggiero while and to Schiller left agent Clayton Paul first met Harold Old- get Surveilling the agents cocaine. deter- California, March, ham in Angeles, Los mined that first to Ruggiero Schiller took Oldham, figure central the in this her house and then drove alone to the resi- complex conspiracy, Clayton informed Metz, dence appellant stayed where he quantities he could supply large of cocaine. p. p. 12:45 m. 3:00 to m. then Schiller 1977, however, Not August, until agent did house, Ruggiero’s picked up returned to Clayton possible call Oldham to discuss a Ruggiero son, yet and her and drove to November, August transaction. From to motel, Inn, another Hialeah Holiday 1977, Clayton, and Oldham others met in agents where Bland and the had obtained Dallas, Miami, Angeles, Los Cay- and the inspecting testing room for the cocaine. Islands, man large to contrive cocaine room, In the Schiller revealed that he had plan transaction laundering and to of only pound proposed one of cocaine. He the illegally proceeds. obtained Additional- that the deal be finished increments rath- ly, Clayton agent, and another Herbert er exchange, than in one apparently pro- to House, with consummated Oldham a small- tect supplier the cocaine from theft. The er preliminary transaction in Miami: on agents rejected vehemently proposal, September 17, $20,000 exchanged they citing for delays already the extensive that had pound one plans of cocaine. The for the throughout day. Throwing occurred larger pound Schiller, deal culminated in the events they tran- back to insisted spiring through production immediate forty December 11 of the entire pounds. agreed Schiller to return to prevent to “secure” the residence pad stash release at least five seek suspected of the cocaine to be destruction pounds. in- agent holding there. An Mrs. Metz so Ruggiero’s Bland, Taking Ruggiero, and requested that give formed her and she son, appellant drove Schiller key accompany them her house them surveilling saw Metz home, agent where a refused, the townhouse. Initially she but a fifteen them the door. After meet left, agreed key go to surrender with stay, others minute Schiller 5:00 them they around when she returning Ruggiero’s home realized not telephoned Bland were p. going irrespec- m. From there to secure the residence they them agents to inform cooperation, they tive her also but wanted to pounds, five but that Schiller jail immediately would take her to if she Reluctantly exchange pound one first. refused. Schiller, however, did not agreed. Upon return to the townhouse their where directly to the motel proceed agent shortly midnight, one took after waiting, drove back to but keys Metz’shand. She asked from Mrs. stayed an Metz’s. There he for over hour. back, refused. Mrs. agent them Schiller, Ruggiero, p. Not until 7:15 m. did me, announced, and I am “It’s Metz then son, arrive at Ruggiero’s and Bland immediately agent police.” pound. they one Again motel room. offered were appellant opened the door. Inside kept pound, claim- This time the Although Metz’s brother. Metz and Mrs. expense ing compensation it as entry, the the warrantless *5 protested and trouble. Metz, his They ordered agents went inside. Apparently sensing futility of further Pending wife, sit down. her brother to and negotiation production without co- warrant, the agents a search issuance of caine, Schiller and the others left. After search, a lump seize no but did conducted stopping pay phone place at a several to floor. Addi- on kitchen cocaine visible calls, they back the motel. turned toward tracing paper, a heat tionally, they observed Realizing procured the four had re- sealer, triple-beam scale on the a likely were not contraband and kitchen. frigerator in the to, agents stopped and arrested them Appellant were taken to and his wife p. around 8:30 m. Agents a. m. headquarters at 2:00 agents’ Sporadic surveillance of Metz’s residence daylight, townhouse until remained throughout day sig- little revealed by a warrant time authorized the search activity evening. nificant until late in m., a. a. m. At about 7:00 issued at 3:30 m., p. Around 10:30 a woman left 2.1 a search which netted they conducted townhouse. had not She driven far when Agents found cocaine grams of cocaine. stopped by government agents, she was upstairs bathroom the toilet and tub an who acted their in- headquarter’s under places in the kitchen down- several contraband structions determine whether seized, stairs. This contraband the being suspected was stash moved along paper a roll of towels similar with pad. searching weap- After for woman pound paper wrapped towel which ons, searched the car con- by Schiller. of cocaine delivered earlier woman, appellant sent of the who was I. TRIAL SPEEDY Metz’s wife. no contra- The found to detain band but nonetheless continued that de Appellant Schiller contends question length, in- Wanda Metz at lay arraignment and trial violated his forming she had her that townhouse Act, 18 U.S.C. Speedy both the Trial just pad for a suspected left a stash speedy local (1976), 3161-3174 §§ large quantity of cocaine. District of Tex plan Northern trial for the as, deadl incorporated the statute’s Meanwhile, agents at drug enforcement occurred ines.1 arrest Schiller’s headquarters operation had decided for [Speedy was enacted Plan] Trial Act 1. The Cases initial Plan for the Northern District of Speedy provisions Act pursuant Trial Prompt Disposition Texas of Criminal 14, 1977, note, however, and his 64 days indictment came do that Schiller did not ob- later, February 1978. The statute at ject granted continuance to his code- required time indictment within 45 fendants, although he move for dismiss- did days (f). 3161(b), arrest. Id. at His § delay al after the indictment and did re- arraignment days came after fourteen in- quest prior severance continuance. dictment, days instead of ten prescribed as v. Wingo, 531-32, Barker 407 U.S. at by the 3161(c). statute. Id. at Following § 2182. allege S.Ct. Nor negli- does Schiller granted continuance to his codefendants gence or government’s bad faith without objection, Schiller’s trial com- Moreover, Id. part. days menced 172 after arraignment, on Au- specific prejudice cites no Schiller to his gust 21, only statute allowed personal or rights, defense but claims days arraignment between and trial. Id. at prejudice any delay. inheres in Absent 3161(c), (g). § showing particular that he suffered some appeal, On Schiller contends that the trial such injury, prolonged as lost or court’s denial of his motion to dismiss his incarceration, pretrial cannot estab- Schiller indictment constitutes reversible error. He requiring lish a re- constitutional infraction concedes that the Act’s sanctions 2182; versal. Id. at mandatory at the time of his trial. Id. at Noll, 1127-28 3163(c). Moreover, plan imposed the local § no mandatory dismissal delay. Speedy Plan, III(10)(d). Trial Act Consequently, II. A SINGLE CONSPIRACY OR SEV- only delay violating the sixth amendment ERAL? compel would dismissal. United States v. complain Both appellants Traylor, 1978), They indictment was defective. claim that misjoined it alleged defendants because it L.Ed.2d 41 showing conspiracies, facts three discrete Balancing prosecutorial conduct yet charged single comprised Schiller’s, we no delay. find unconstitutional *6 They sepa of several events. enumerate as 514, 530, Wingo, See Barker v. 92 conspiracies separate rate casts the 2182, (1972); S.Ct. L.Ed.2d 101 33 17, preliminary September of transaction Edwards, 883, (5th States v. 577 888 F.2d scheme, the money-laundering and the
Cir.), 439 U.S. large-scale aborted transaction of December To determine trial, Accordingly, argue 14. that speedy they whether was denied a because Schiller length delay, consider the of the reasons misjoinder of is inherently prej defendants delay, rights, for assertion of his udicial, Schiller’s the trial refusal court’s dismiss and prejudice what resulted. Barker v. the indictment is reversible. Fed.R.Crim.P. 2182; Wingo, 407 92 Unit U.S. S.Ct. 8(b); Lane, 584 F.2d 62 Carter, ed States v. 1206 1978). 1979). case, this in In the threshold misjoinder determine To whether oc- quiry dispositive. relatively is brief curred, we consider whether the indict- delays rise Schiller encountered do not allegations, true, ment’s as taken establish a the level presumptive prejudice. of There single conspiracy or several. United States fore, we need not consider in other factors Levine, deciding that Schiller was not denied the doing, we In so consider whether the al- right to a speedy Wingo, trial. Barker v. leged identity U.S. at reveal a “substantial of facts S.Ct. 2182 Unit ed States v. Edwards, 577 participants” F.2d at 888. We sufficient meet the facts or requiring plan adopt proce- federal district courts to was another filed June on and compliance instituting dures July since with the Act. 18 effective 3165(e)(2) (1976). plan
U.S.C. Replacing § that goal his awareness the ultimate 8(b).2 edge of requirements of rule United States 1244,1248^49 to attain it. Marionneaux, efforts cooperative of others’ correctly Ruggiero's Shirley assert Appellants refused When each of appearance phase night Oldham’s mere of pounds five cocaine offer to sell conspiracy transaction, could not transform several large she before the scheduled conspiracies single into a scheme. United to return would have that she remarked find, Levine, 546 F.2d at By pad. the stash pounds five those however, adequately indictment her home not she revealed that remark objective: conspiratorial a singular shows Therefore, day’s next pad. stash large-scale transaction. Ade- narcotics sellers, ending at inevitably by the trips as of that same co- quately alleged facets Metz’s, strongly sug- Ruggiero’s or either the plan scheme were caine distribution was the stash townhouse gested that Metz’s illgotten proceeds, prelimi- launder its Moreover, surveilling agent testified pad. nary September prepara- sale of the town- saw at the door that he tions the December 14 transaction. m., establishing thereby p. at 5:00 house charge appel That the indictment did of other during the course presence participation phase lants each with active Finally, search con- conspirators’ visits. misjoinder. conspiracy of the does not effect uncovered only 15 not on December ducted Wooldridge, United States house, also revealed cocaine Metz’s Cir.), U.S. several loca- occurred in disposal 150, 155, 58 floors, suggesting on different tions need the indictment Nor to eradi- endeavored person than one charged partic all the appellants knew Since of contraband. cate conspiracy, long ipants or of the so details when men in the townhouse only two alleged conspir knowledge as it their Metz, the several Mrs. police arrived with acy’s essential nature. Id. strongly implicate Metz’s places disposal disposal of the cocaine. in the cooperation prejudicial vari
Appellant’s claim of
proof
sim
ance
the indictment
between
know
appellants’
This evidence
prove appellants’
ilarly
To
com
must fail.
single
confed
ledgeable cooperation
plicity, the evidence need not have shown
proof
conformed
eration
every
knowledge
phase
either
indictment,
an ade
but also established
or their participation in each
quate
basis
admission
Metz of
States,
event. Blumenthal v. United
alleged coconspirators’ extrajudicial
state
539, 556-58,
Because this independent coconspirators’ delay preparation of the warrant would en- extrajudicial statements, would allow a jury reasonable to find Metz tail. conspirator, aggregated evidence nec Accordingly, these agents headquar- at essarily is sufficient to sustain his convic ters, informed of departure, Mrs. Metz’s Carreno, tion. United States v. watching instructed the still investigate. Question- townhouse to III. SEARCH AND SEIZURE ing Mrs. searching Metz and her car uncov- Appellant Metz asserts error in the ered no believing cocaine. Still trial court’s suppress refusal incrimina however, townhouse pad, to be the stash ting garnered in the search of his agents returned to the townhouse with Mrs. agree home. We appellant that Mrs. Metz, who key surrendered her when Metz never consented to the agents’ war jail. threatened with protest, Over her entry rantless midnight. court, The trial they key used her to enter the townhouse.
however, found that proba dilatory inefficacious and efforts ble cause to believe cocaine was on the gain Mrs. voluntary cooperation viti- premises, under circumstances sufficiently ated consent agents may exigent to validate the intrusion. We re sought. Bustamonte, See Schneckloth v. ruling view this mindful factual *8 218, 412 248-49, 2041, U.S. 93 S.Ct. 36 findings upon which it is are based reversi ble (1973). if L.Ed.2d 854 clearly agents may That the erroneous. United States v. Duckett, 1309, (5th 583 F.2d 1313 have stop Cir. conducted an unlawful or that 1978). they however, used the key protest, over did Apollo recently 3. Oliva and were overruled substantial standard announced James, 575, (5th James, James, United prospectively States v. 590 F.2d 579 because effective Cir.), denied,-U.S.-, 2836, thirty days post- opinion, cert. 99 S.Ct. from the date of the (1979). Nonetheless, appellants’ 61 L.Ed .2d 283 the Oliva dated Robinson, trial. See United States v. prima governs, 1202, (5th 1979). facie standard rather than the 59.1 F.2d 1204 Cir.
155
conduct,
By
they complied
the rule
this
the
dispel
ongoing
risk of
contra
searches
of warrantless
delay
limiting
scope
incurred
band’s destruction.
excepting the search from
rationale
length which would amel
type
or
See,
v.
Cupp
requirement.
Leasing
M.
the warrant
emergency.
G.
iorate that
See
291,
2000, 36
338, 358-59,
295,
States,
412
93 S.Ct.
Murphy,
U.S.
v.
429 U.S.
Corp. United
v.
(1973); United
Afana-
619,
(1977). The
900
States
530
97
50 L.Ed.2d
S.Ct.
1978).
1325,
dor,
(5th
1328
567 F.2d
probable
still
cause
believe
lawful,
agents’ seizure
entry being
to The
premises
that cocaine was on the
floor
lump of cocaine
Consequent
of a small
fear its imminent destruction.
excep-
merits
counter
the kitchen
ly,
per
which would have
beneath
circumstances
requirement under
the warrant
entry justified the later
tion to
mitted an earlier
v.
Lewis,
583,
Coolidge
New
plain view
v.
417 U.S.
595-
doctrine.
one. Cardwell
2022,
443, 465,
2464,
91 S.Ct.
96,
(1974).
325
Hampshire,
94
41 L.Ed.2d
403 U.S.
S.Ct.
496, 505,
(1971);
States
Kentucky,
United
Roaden v.
redundant. error Appellant Metz asserts
Upon entry,
the agents merely se
sever his trial from
trial court’s refusal to
*9
premises, conducting
prof-
cured the
no search. Schiller’s to
Schiller’s
accommodate
fered exculpatory testimony,
and fearful
his testimony, exculpating
unavailable in
that
joint
codefendants,
trial
Metz but
planned
inculpating
because Schiller
not to
other
subject
prison.
danger
take the
would
him to
witness stand. Metz assumes a
burden,
heavy
since the trial court’s sever
To
validity
ascertain the
of Bland’s fifth
ance denial is
reviewable
for abuse of
claim,
properly
amendment
the trial court
Byrd
discretion.
Wainwright,
v.
Bland,
appointed
questioned
counsel
1017,
(5th
1970).
Cir.
to
Failing make
scrutinizing
refusing
rationale
to
his
a clear showing that
the denial created
States,
testify.
v.
Rogers
United
U.S.
prejudice
trial,
denying
him fair
367,
(1951);
71 S.Ct.
157 equivalent trustworthiness stan- fail the Statement Bland’s Prior Sworn agree 804(b)(5). We of Fed.R.Evid. dards next asserts the trial Metz proffers trial that the same with the court testimony compel court’s Bland’s refusal to such circumstantial not establish could “unavailable,” Fed.R. made under Bland as man- guarantees trustworthiness Therefore, 804(b)(2). argues, Evid. Metz statement date admission of Bland’s under the trial should have admitted Bland’s court exception. hearsay the residual United prior by taken sworn statement before trial Alvarez, at 702 v. n.10. States In that attorney appellant Schiller. professed statement Bland never to have JURY V. CHARGE TO THE during known Metz appellant or seen Appellant through new Metz coun course to which he had appeal on reversal because the sel seeks pled judge guilty. The trial refused to ad prelimi at trial held a judge attorneys mit an admission the statement as nary jury instruction discussion off rec interest, penal hearsay exception under charge formal ord before recorded con 804(b)(3). The trial court Fed.R.Evid. Reporter Act, Although ference. the Court statement, found in a that Bland’s taken (1976), does mandate 28 U.S.C. 753 § setting, lacked the clear cor nonadversarial recording proceedings “all criminal 804(b)(3) required by Rule roboration court,” had in id. at open 753(b)(1), cases § guarantee its trustworthiness. See United trial counsel opportunity seized his to record Alvarez, States v. 584F.2d 701 Cir. objections charge during the formal confer 1978); Bagley, v. United States significant ence. no Consequently, omission 1976), from the Accordingly, record occurred. we 816, 50 can conclude affirmatively that none of compel In his efforts to admission infringed. Metz’s rights substantial was statement, appellant prof of Bland’s Selva, United See repeated fered Bland’s as corroboration 1306 & n.5 1977)4 statement. reaffirmance of the Metz also testimony drew attention to the of Metz’s Moreover, that sub we have considered witness, placed away alibi from stance of charge as whole trial court’s on December 14. townhouse Addition appli and find it statement of correct ally, appellant Metz stressed that the Chandler, cable law. See United States agent claiming to have seen Metz at the 1978), cert. de changed representation townhouse a former nied, 59 L.Ed.2d that he had never seen him. Seeking conveyed adequately judge The townhouse, establish his absence from the Metz’s jury pertinent the law Metz argued agent’s that the former testi refusing to re correctly theory defense, mony subsequent change and the corrobo arguments jury count for the the factual rated Bland’s statement implying Metz’s instruction. requested ensconced in Metz’s absence. Barham, F.2d See States informed judge proffers Such corroboration do not conspira convince us of jury clear error in the “mere association” trial court’s complicity. refusal Metz’s to admit the could establish statement tors under Rule legal applicable 804(b)(3). language See United disclosed Bagley, States That sig detracting F.2d Moreover, at 165. having principle without failed to the stash meet presence of Metz’s corroboration nificance standards of one hearsay exception, pad. the statement must also the under- satisfied appellate standard would also note that lesser counsel present circumstances. lying policy in these dictates at trial as counsel to one of Metz’s rule, per Selva see se Although employ a criticism of For codefendants. Smith, 1109 n. 1 F.2d exacting by standard of review commanded presence (5th Cir. appeal, see different counsel Selva, United States v. *11 ARGU- error in VI.
Metz further asserts
the
PROSECUTOR’S CLOSING
rejection
requested
MENT
trial court’s
of a
instruc
sole,
actual,
joint,
and constructive
tion on
Finally, appellant
claims
claim under
possession.
review this
the
prosecutor’s
brought
the
closing argument
of Metz’s fail
plain error standard because
guilty
the
through prejudicial
about
verdict
object to the omission. See United
ure to
appeals
jury
unsupported by the evi
Marino,
941,
945
v.
States
prosecu
dence. Metz cites
the
examples
as
996,
denied,
1977),
98 S.Ct.
cert.
435 U.S.
tor’s characterization Metz and other de
1647,
(1978).