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. e du/thir dc ir c uit_2001/288Filed 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 AppellantMichael 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, asser ts that the pistol seized from him as a consequence of his non-Mirandized statement was "fruit of the poisonou s tree" and, therefore, should have been excluded from evid ence. We reject that contention because suppressing evide nce derived from a voluntary but unwarned confession se rves neither the goal of deterring coercive police misco nduct nor the purpose of ensuring trustworthy evidence. Accor dingly,
the conviction will be affirmed.

A jury convicted defendant on one count of conspira cy, four counts of extortion in the collection of exten sion of credit in violation of 18 U.S.C. S 894(a), and use of a firearm during the commission of a crime in violati on 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 posse ssion charge.

Defendant acted as a collector for one Peter D'Amel io, intimidating individuals who had defaulted on loans or

2submitted bad checks. In January 1998, D'Amelio and

defendant appeared at the offices of brothers Andy and Gary Shull in Huntingdon Valley, Pennsylvania, to c onfront them with the fact that $40,000 in checks that they had written had proved to be worthless. After some heat ed discussion, defendant drew a handgun and fired a sh ot past Andy Shull's head and into the wall behind him

.

The Shulls then agreed to work with the FBI in thei r investigation of D'Amelio and defendant. Six months later,
defendant met with the Shulls at a restaurant in Philadelphia, Pennsylvania. After searching the Shu lls for recording devices, defendant warned them not to coo perate with the authorities against D'Amelio or himself. H e also reminded the Shulls of the January 1998 shooting in cident, and threatened them with harm if they turned on him

.

Over the next two months, defendant met with the Sh ulls
on several occasions and renewed his threats to kil l them if they did not pay the money they owed D'Amelio. T he FBI
then secured arrest warrants for D'Amelio and defen dant.

On September 29, 1998, a five-man FBI surveillance
team observed defendant drive his automobile into t he 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 pa rking lot involving the defendant's car. Defendant then w ent out to the lot, and when he was within a few feet of hi s car, the
FBI team surrounded and arrested him.

One of the agents handcuffed defendant and conducte d a pat-down search to determine if he carried any weap ons. Failing to detect anything, an agent asked defendan t if he had any weapons or firearms in his possession. Defe ndant replied that there was a weapon in his automobile a nd 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 g iven any Miranda warnings. The agents opened the car and ret rieved a loaded pistol from a briefcase.

The District Court conducted a suppression hearing, during which the government presented the testimony of

3one of the FBI agents who had been at the scene. Th e

government offered no evidence that the agents knew defendant was carrying a weapon or had access to on e. Nor did the prosecution present any testimony that the agents were aware of the defendant's previous use of a fir earm.

Based on this evidence, the Court found that becaus e Miranda warnings had not been given, the defendant' s statement that a gun was in his car should be suppr essed. Rejecting the government's contention that the publ ic 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 wa s admissible and the fruit of the poisonous tree doct rine did not apply because the defendant's statement was vol untary, albeit inadmissible, under Miranda. Relying on Oreg on v. Elstad, 470 U.S. 298 (1985), the Court observed tha t a Miranda breach does not necessarily preclude the us e of all evidence flowing from the infraction. Moreover, thi s Court had observed that Elstad rejected the proposition t hat 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 testifie d that just before the start of trial, defendant threatene d 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-poin t
increase to the offense level.

On appeal, defendant contends that the District Cou rt erred by admitting the pistol into evidence. He als o argues that the Court violated Apprendi v. New Jersey , 53 0 U.S. 466 (2000), by adding a two-point upward adjustment to the offense level for obstructing justice in the ab sence of a jury determination on that point.

4I.

In Wong Sun, narcotics agents arrested the defendan ts in their homes without probable cause or reasonable gr ounds. Wong Sun, 371 U.S. at 473-78. The Supreme Court hel d
that because Fourth Amendment violations had occurr ed, the evidence stemming from those arrests must be ex cluded from the trial as "fruit of the poisonous tree." Id . at 488.

The defendant in Elstad gave an incriminating state ment 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 introdu ced at trial. Id. at 301-02. The Supreme Court rejected th e defendant's contention that the second confession w as the fruit of the poisonous tree. Id. at 308. The Court explained that the purpose of the Fourth Amendment's exclusio nary 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 Amendme nt itself. Id. Thus, a voluntary statement that would be admissible under the Amendment may be barred becaus e of the lack of a Miranda warning.

The Court explained that the Fifth Amendment bars t he prosecution from using compelled testimony in its c ase in
chief because the failure to administer Miranda wa rnings 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 frui ts be discarded as inherently tainted." Id. at 307. A def endant 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 defen dant's request to suppress such evidence as an "extravagan t extension of the Constitution").

Elstad emphasized that "[v]oluntary statements rema in a proper element in law enforcement" and admissions o f guilt, "if not coerced, are inherently desirable." Elstad, 470

5U.S. at 305 (internal quotations and citations omit ted). The

element of police misconduct is not a factor that c omes into play when the prosecution uses a voluntary statemen t.

Applying the Wong Sun fruits doctrine where the evi dence 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 occu rs 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 har mless error." Johnson, 816 F.2d at 923. We summarized Els tad as "specifically reject[ing] the proposition that the `fruit of the poisonous tree' doctrine, which in the fourth amend ment context requires the exclusion of evidence or confe ssions 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. Eli e, 111 F.3d 1135 (4th Cir. 1997) (derivative evidence obta ined as a result of a voluntary unwarned statement not frui t of the poisonous tree); United States v. Mendez, 27 F.3d 1 26 (5th Cir. 1994) (derivative evidence admissible); United States v. Gonzalez-Sandoval, 894 F.2d 1043 (9th Cir. 1990) (s ame); 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 doctr ine `where there is a substantial nexus between [Miranda ] vio lation 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 th e case before us, the Supreme Court held in Dickerson v. U nited States, 530 U.S. 428 (2000), that Miranda was a constitutional rule that Congress could not superse de legislatively. 530 U.S. at 444. Defendant seizes on Dickerson's ruling, arguing that the pronouncement of Miranda's constitutionality casts doubt on the earl ier cases denying suppression of derivative evidence. He emph asizes that the opinions refusing to apply Wong Sun referr ed to

6the fact that Miranda was only "prophylactic" and n ot

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 tradi tional `fruits' doctrine developed in Fourth Amendment cas es -- does not prove that Miranda is a nonconstitutional decision, but simply recognizes the fact that unrea sonable
searches under the Fourth Amendment are different f rom 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 th e Fifth, rather than the Fourth, Amendment. Ultimately, the Fifth Amendment prevents the use of the non-Mirandized
statement rather than the introduction of derivativ e evidence.

We hold that the fruit of the poisonous tree doctri ne does not apply to derivative evidence secured as a resul t of a voluntary statement obtained before Miranda warning s are issued. Thus, even though the defendant's seized gu n 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 st atement and the gun were admissible because Miranda does no t apply where the public's safety is threatened. Id. at 656-59; see also id. at 667-74 (O'Connor, J). (discussing a dmission of the gun itself).

In the case before us, the government did not intro duce any evidence that the FBI knew of the defendant's v iolent propensities or that he had used a pistol to intimi date the Shulls. Nor did the government introduce evidence a t the suppression hearing that the agents were aware of t he

7crime for which defendant was being arrested. So fa r as the

record here reflects, the arresting agents were not advised that the defendant was any more dangerous or violen t 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' we ll-being.

II.

In sentencing the defendant, the District Court imp osed a two level increase pursuant to United States Sent encing Guideline 3C1.1, which provides for such enhancemen t if the defendant willfully obstructs the administratio n of justice during the course of an investigation, pros ecution or sentencing. In addition to threatening D'Amelio, th e testimony at trial reveals that the defendant simil arly attempted to intimidate the Shulls and performed bo dy

searches on them.

Defendant contends that the obstruction issue shoul d have been submitted to the jury in accordance with Apprendi. There, the Supreme Court held that"any fa ct that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Appren di, 530 U.S. at 490. This Court has since concluded, ho wever, that when the actual sentence imposed does not exce ed the statutory maximum, Apprendi is not implicated. Unit ed States v. Williams, 235 F.3d 858, 863 (3d Cir. 2000 ). In addition, Williams stated that Apprendi did not pu rport to limit the factors that a sentencing judge could con sider 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 se ntence
is less than that which would have been authorized by jury verdict). Here, the sentence fell well below the st atutory limit and, accordingly, was permissible.

The defendant's contention that he was entitled to have the obstruction of justice issue submitted to a jur y must
fail because he was not convicted of that crime. Al though his conduct resembled this offense, it was simply r elevant conduct that had a bearing on the appropriate sente nce. In

8this respect, the District Court properly exercised its

discretion in accordance with the Sentencing Guidel ines.

Accordingly, the judgment of the District Court wil l be
affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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