2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-11-2001

USA v. DeSumma

Precedential or Non-Precedential:

Docket 00-3629

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Recommended Citation

"USA v. DeSumma" (2001). 2001 Decisions. Paper 288.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/288
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 

 5 
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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