USA v. DeSumma Filed November 29, 2001
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-3629
UNITED STATES OF AMERICA
v.
FRANK DeSUMMA, a/k/a Doc,
Frank DeSumma, Appellant
APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 98-CR-00562-2)
District Judge: Honorable Jan E. DuBois
Argued July 30, 2001
Before: BECKER, McKEE and WEIS,
Circuit Judges
(Filed: November 29, 2001)
Marian R. Ragusa, Esquire
(ARGUED)
Louis R. Busico, Esquire
234 South State Street
Newtown, PA 18940
Counsel for Appellant
Michael L. Levy, Esquire
United States Attorney
Robert A. Zauzmer, Esquire
Assistant United States Attorney
Chief of Appeals
Robert E. Courtney, III, Esquire
Deputy U.S. Attorney and
Chief, Organized Crime Division
David Fritchey, Esquire (ARGUED)
Assistant United States Attorney
Organized Crime Division
615 Chetnut Street, Suite 1240
Philadelphia, PA 19106
Counsel for Appellee
OPINION OF THE COURT
WEIS, Circuit Judge.
DeSumma, the defendant in this criminal case, asserts
that the pistol seized from him as a consequence of his
non-Mirandized statement was "fruit of the poisonous tree"
and, therefore, should have been excluded from evidence.
We reject that contention because suppressing evidence
derived from a voluntary but unwarned confession serves
neither the goal of deterring coercive police misconduct nor
the purpose of ensuring trustworthy evidence. Accordingly,
the conviction will be affirmed.
A jury convicted defendant on one count of conspiracy,
four counts of extortion in the collection of extension of
credit in violation of 18 U.S.C. S 894(a), and use of a
firearm during the commission of a crime in violation of 18
U.S.C. S 924(c). He was also found guilty of being a felon in
possession of a firearm in violation of 18 U.S.C.S 922(g).
The District Court sentenced defendant to fifty-one months
imprisonment on the extortion counts, and imposed a
mandatory consecutive sixty months on the gun possession
charge.
Defendant acted as a collector for one Peter D'Amelio,
intimidating individuals who had defaulted on loans or
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submitted bad checks. In January 1998, D'Amelio and
defendant appeared at the offices of brothers Andy and
Gary Shull in Huntingdon Valley, Pennsylvania, to confront
them with the fact that $40,000 in checks that they had
written had proved to be worthless. After some heated
discussion, defendant drew a handgun and fired a shot
past Andy Shull's head and into the wall behind him.
The Shulls then agreed to work with the FBI in their
investigation of D'Amelio and defendant. Six months later,
defendant met with the Shulls at a restaurant in
Philadelphia, Pennsylvania. After searching the Shulls for
recording devices, defendant warned them not to cooperate
with the authorities against D'Amelio or himself. He also
reminded the Shulls of the January 1998 shooting incident,
and threatened them with harm if they turned on him.
Over the next two months, defendant met with the Shulls
on several occasions and renewed his threats to kill them
if they did not pay the money they owed D'Amelio. The FBI
then secured arrest warrants for D'Amelio and defendant.
On September 29, 1998, a five-man FBI surveillance
team observed defendant drive his automobile into the
parking lot of a club in Bucks County, Pennsylvania, and
park near the door. One agent entered the club and
announced that there had been an accident in the parking
lot involving the defendant's car. Defendant then went out
to the lot, and when he was within a few feet of his car, the
FBI team surrounded and arrested him.
One of the agents handcuffed defendant and conducted a
pat-down search to determine if he carried any weapons.
Failing to detect anything, an agent asked defendant if he
had any weapons or firearms in his possession. Defendant
replied that there was a weapon in his automobile and gave
the agent the pad combination to open his car door.
Until this point, the agents had not displayed any
firearms, used any force or threats, nor had they given any
Miranda warnings. The agents opened the car and retrieved
a loaded pistol from a briefcase.
The District Court conducted a suppression hearing,
during which the government presented the testimony of
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one of the FBI agents who had been at the scene. The
government offered no evidence that the agents knew
defendant was carrying a weapon or had access to one. Nor
did the prosecution present any testimony that the agents
were aware of the defendant's previous use of a firearm.
Based on this evidence, the Court found that because
Miranda warnings had not been given, the defendant's
statement that a gun was in his car should be suppressed.
Rejecting the government's contention that the public safety
concerns expressed in New York v. Quarles, 467 U.S. 649
(1984), were applicable, the trial judge said this was a
"routine arrest scenario."
The Court, however, ruled that the pistol itself was
admissible and the fruit of the poisonous tree doctrine did
not apply because the defendant's statement was voluntary,
albeit inadmissible, under Miranda. Relying on Oregon v.
Elstad, 470 U.S. 298 (1985), the Court observed that a
Miranda breach does not necessarily preclude the use of all
evidence flowing from the infraction. Moreover, this Court
had observed that Elstad rejected the proposition that the
fruit of the poisonous tree doctrine, announced in Wong
Sun v. United States, 371 U.S. 471 (1963), applied to
Miranda violations. United States v. Johnson , 816 F.2d 918,
922-23 (3d Cir. 1987). Finally, the District Court concluded
that the defendant's voluntary statements provided
probable cause to search his car. See United States v.
DeSumma, 44 F. Supp. 2d 700 (E.D. Pa. 1999).
During the sentencing proceeding, D'Amelio testified that
just before the start of trial, defendant threatened him with
death if he testified for the prosecution. Based on this
testimony, the District Court found that defendant had
obstructed justice and, therefore, added a two-point
increase to the offense level.
On appeal, defendant contends that the District Court
erred by admitting the pistol into evidence. He also argues
that the Court violated Apprendi v. New Jersey , 530 U.S.
466 (2000), by adding a two-point upward adjustment to
the offense level for obstructing justice in the absence of a
jury determination on that point.
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I.
In Wong Sun, narcotics agents arrested the defendants in
their homes without probable cause or reasonable grounds.
Wong Sun, 371 U.S. at 473-78. The Supreme Court held
that because Fourth Amendment violations had occurred,
the evidence stemming from those arrests must be excluded
from the trial as "fruit of the poisonous tree." Id. at 488.
The defendant in Elstad gave an incriminating statement
before receiving Miranda warnings. Elstad, 470 U.S. at 300-
01. Later, after having been advised of his Miranda rights,
defendant gave a written statement that was introduced at
trial. Id. at 301-02. The Supreme Court rejected the
defendant's contention that the second confession was the
fruit of the poisonous tree. Id. at 308. The Court explained
that the purpose of the Fourth Amendment's exclusionary
rule is "to deter unreasonable searches, no matter how
probative their fruits." Id. at 306 (emphasis added). The
Miranda exclusionary rule, in contrast, serves the Fifth
Amendment and applies more broadly than the Amendment
itself. Id. Thus, a voluntary statement that would be
admissible under the Amendment may be barred because
of the lack of a Miranda warning.
The Court explained that the Fifth Amendment bars the
prosecution from using compelled testimony in its case in
chief because the failure to administer Miranda warnings
creates a presumption of compulsion. Elstad, 470 U.S. at
306-07. Consequently, even unwarned voluntary
statements are excluded from evidence. Id. at 307. The
Court continued, however, "the Miranda presumption . . .
does not require that the statements and their fruits be
discarded as inherently tainted." Id. at 307. A defendant
whose confession is inadmissible may not "enjoy the
freedom to `deny every fact disclosed or discovered as a
"fruit" of his confession' . . . ." Id .; see also Harris v. New
York, 401 U.S. 222, 225 n.2 (1971) (rejecting defendant's
request to suppress such evidence as an "extravagant
extension of the Constitution").
Elstad emphasized that "[v]oluntary statements remain a
proper element in law enforcement" and admissions of
guilt, "if not coerced, are inherently desirable." Elstad, 470
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U.S. at 305 (internal quotations and citations omitted). The
element of police misconduct is not a factor that comes into
play when the prosecution uses a voluntary statement.
Applying the Wong Sun fruits doctrine where the evidence
is obtained as the result of a voluntary statement, would be
inconsistent with deterring improper police conduct and the
goal of assuring trustworthy evidence. Id. at 308. No
constitutional violation occurs in such a situation unlike
the circumstances where an unreasonable search occurs or
a coerced confession is obtained.
Johnson relied on Elstad in holding that "[w]here a
subsequent confession is obtained constitutionally, the
admission of prior inadmissible confessions was harmless
error." Johnson, 816 F.2d at 923. We summarized Elstad as
"specifically reject[ing] the proposition that the `fruit of the
poisonous tree' doctrine, which in the fourth amendment
context requires the exclusion of evidence or confessions
obtained as a result of a constitutional violation, extends to
violations of the Miranda decision." Id. at 922.
Other cases are in accord. See United States v. Elie, 111
F.3d 1135 (4th Cir. 1997) (derivative evidence obtained as
a result of a voluntary unwarned statement not fruit of the
poisonous tree); United States v. Mendez, 27 F.3d 126 (5th
Cir. 1994) (derivative evidence admissible); United States v.
Gonzalez-Sandoval, 894 F.2d 1043 (9th Cir. 1990) (same);
United States v. Sangineto-Miranda, 859 F.2d 1501 (6th Cir.
1988) (same). But see United States v. Byram, 145 F.3d
405, 410 (1st Cir. 1998) (applying the fruits doctrine `where
there is a substantial nexus between [Miranda ] violation in
the second statement, where the second statement is not
itself preceded by an adequate Miranda warning').
After the District Court entered its judgment in the case
before us, the Supreme Court held in Dickerson v. United
States, 530 U.S. 428 (2000), that Miranda was a
constitutional rule that Congress could not supersede
legislatively. 530 U.S. at 444. Defendant seizes on
Dickerson's ruling, arguing that the pronouncement of
Miranda's constitutionality casts doubt on the earlier cases
denying suppression of derivative evidence. He emphasizes
that the opinions refusing to apply Wong Sun referred to
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the fact that Miranda was only "prophylactic" and not
constitutional.
We cannot agree with the defendant's reading of
Dickerson because the Supreme Court appeared to
anticipate and reject it. The Court explained that"[o]ur
decision in [Elstad] -- refusing to apply the traditional
`fruits' doctrine developed in Fourth Amendment cases --
does not prove that Miranda is a nonconstitutional
decision, but simply recognizes the fact that unreasonable
searches under the Fourth Amendment are different from
unwarned interrogation under the Fifth Amendment." 530
U. S. at 441.
Dickerson thus continued to observe the distinction
between Miranda's application to cases involving the Fifth,
rather than the Fourth, Amendment. Ultimately, the Fifth
Amendment prevents the use of the non-Mirandized
statement rather than the introduction of derivative
evidence.
We hold that the fruit of the poisonous tree doctrine does
not apply to derivative evidence secured as a result of a
voluntary statement obtained before Miranda warnings are
issued. Thus, even though the defendant's seized gun was
secured as a result of his non-Mirandized statement, it was
properly admitted.
Our holding makes it unnecessary to decide whether the
evidence was admissible under Quarles. In that case, the
defendant was wearing an empty holster when he was
apprehended, prompting the officer to ask him where the
gun was. 467 U.S. at 652. Defendant nodded in the
direction of some empty cartons and said, "the gun is over
there." Id. The Supreme Court held that both the statement
and the gun were admissible because Miranda does not
apply where the public's safety is threatened. Id. at 656-59;
see also id. at 667-74 (O'Connor, J). (discussing admission
of the gun itself).
In the case before us, the government did not introduce
any evidence that the FBI knew of the defendant's violent
propensities or that he had used a pistol to intimidate the
Shulls. Nor did the government introduce evidence at the
suppression hearing that the agents were aware of the
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crime for which defendant was being arrested. So far as the
record here reflects, the arresting agents were not advised
that the defendant was any more dangerous or violent than
a person accused of a typical Ponzi scheme. The
government furnished no evidence that there was any basis
for fear of the public's safety or the officers' well-being.
II.
In sentencing the defendant, the District Court imposed
a two level increase pursuant to United States Sentencing
Guideline 3C1.1, which provides for such enhancement if
the defendant willfully obstructs the administration of
justice during the course of an investigation, prosecution or
sentencing. In addition to threatening D'Amelio, the
testimony at trial reveals that the defendant similarly
attempted to intimidate the Shulls and performed body
searches on them.
Defendant contends that the obstruction issue should
have been submitted to the jury in accordance with
Apprendi. There, the Supreme Court held that"any fact
that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt." Apprendi,
530 U.S. at 490. This Court has since concluded, however,
that when the actual sentence imposed does not exceed the
statutory maximum, Apprendi is not implicated. United
States v. Williams, 235 F.3d 858, 863 (3d Cir. 2000). In
addition, Williams stated that Apprendi did not purport to
limit the factors that a sentencing judge could consider in
imposing a sentence below the statutory maximum. Id.; see
also United States v. Pressler, 256 F.3d 144, 159 (3d Cir.
2001) (Apprendi claim nonexistent where ultimate sentence
is less than that which would have been authorized by jury
verdict). Here, the sentence fell well below the statutory
limit and, accordingly, was permissible.
The defendant's contention that he was entitled to have
the obstruction of justice issue submitted to a jury must
fail because he was not convicted of that crime. Although
his conduct resembled this offense, it was simply relevant
conduct that had a bearing on the appropriate sentence. In
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this respect, the District Court properly exercised its
discretion in accordance with the Sentencing Guidelines.
Accordingly, the judgment of the District Court will be
affirmed.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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