United States v. Fusse

111 F. App'x 374
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 8, 2004
DocketNo. 02-6112
StatusPublished

This text of 111 F. App'x 374 (United States v. Fusse) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Fusse, 111 F. App'x 374 (6th Cir. 2004).

Opinion

OPINION

COLE, Circuit Judge.

Defendant-Appellant Roger Fusse appeals his conviction of conspiracy to possess with intent to distribute 500 grams of cocaine. The charges alleged that Fusse— a mechanic who owns an autobody shop— extracted drugs that his alleged coconspirators had hidden in an automobile’s engine during their journey across the Mexican border. Fusse argues that: (1) the jury’s verdict was against the weight of the evidence; and (2) that the district court erroneously admitted hearsay statements. For the following reasons, we AFFIRM.

I. BACKGROUND

At trial, the following evidence was introduced. Stephen Brassel, Jeremy Hicks, and James Poteete delivered a truck (“the Truck”) — that contained cocaine hidden in its engine — to Fusse’s bodyshop (“the shop”). (Brassel, Hicks, and Poteete had been arrested on October 24, 2000. All subsequently pled guilty to drug trafficking charges and testified against Fusse in the hopes of receiving substantial downward departures from their otherwise mandatory sentences.) Although Hicks did not remember whether he notified Fusse in advance that he was bringing the Truck to the shop, he testified that there had been prior occasions in which he had shown up sans advance warning. Hicks stated that he trusted Fusse: “He knew about what I was doing, what was going on, and I couldn’t just take something like that just anywhere.” Brassel and Poteete testified that they had no direct relation[376]*376ship with Fusse, and instead learned of the plan from Hicks.

Hicks testified that after he pulled into the shop, he told Fusse what was in the engine, and that the two men agreed that Hicks would return the next morning to retrieve the cocaine. Hicks further explained that he and Poteete returned to the shop on the morning of September 27 to retrieve the cocaine. According to Hicks, Fusse gave him the four kilograms of cocaine that had been stored in the engine. Poteete similarly testified that he saw Fusse hand Hicks the box, and, although he did not pay attention to whether Fusse looked into it, Poteete testified that the box lacked a top.

Brassel testified that on September 28, 2000, he, Hicks, and Poteete picked up a trailer containing furniture (“the Trailer”) and took it to the shop. Brassel testified that although he and Hicks pulled up to the shop, they never dropped off the Trailer because they discovered that local police were tailing them. Indeed, police officer Leon Taylor testified he had conducted surveillance of Brassel on that day. Taylor broke off surveillance when it appeared that Brassel and Hicks realized that they were being followed; the last place that Taylor saw them driving the Trailer was on the street of the shop.

FBI Agent Dan Kennedy testified that he visited Fusse’s Nashville residence on February 21, 2001. According to Kennedy, Fusse initially denied having done any mechanic work for Hicks between September 26 and 28, 2000. When further pressed by Kennedy, Fusse admitted that Hicks had told him that the engine had been losing power, and that he (Fusse) did indeed work on it; according to Kennedy, Fusse stated that when he tore into the engine, he saw something inside of it that should not have been there and immediately summoned Hicks to the shop. Fusse told Kennedy that he was unsure what the mystery “thing” was, and that he did not bother to look at it and did not know what it looked like. Fusse then agreed questioning by federal officials, but informed Kennedy that he needed “tonight to tell [his wife] what’s going on because she doesn’t know anything about this.”

At trial, Fusse reiterated that although Hicks brought the Truck to the shop on September 26, Hicks did not ask him to remove any drugs, and instead asked him to fix the engine. Fusse testified that upon opening the hood, he saw an intake leak and spilled gasket sealer, but no drugs. When reinserting the intake gasket into the engine, Fusse testified, he saw something “that didn’t look like ... it should have been there ... [i]t looked like a homemade plate over the bottom of the intake.” Fusse denied authorizing Hicks to bring either the Truck or the Trailer to the shop, and testified that he first learned that Hicks was a drug dealer after Hicks had been arrested.

II. ANALYSIS

Fusse raises two claims: (1) that the district court abused its discretion in denying his motion for a new trial; and (2) the district court erred in admitting Hicks’s out-of-court statements regarding Fusse’s participation in the conspiracy.

A. Motion for a New Trial

Fusse first argues that the district court abused its discretion in denying his motion for a new trial. Federal Rule of Criminal Procedure 33(a) provides that “[u]pon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” When presented with a Rule 33 motion— unlike a Rule 29 Motion for Judgment of Acquittal — the district court may weigh the evidence and assess the credibility of [377]*377the witnesses; “[i]t has often been said that [it] sits as a thirteenth juror.” United, States v. Solorio, 337 F.3d 580, 589 n. 6 (6th Cir.2003) (internal citations omitted). However, when reviewing the district court’s decision to deny said motion, we may only “determine whether the district court’s determination that the evidence does not ‘preponderate heavily against the verdict’ is a clear and manifest abuse of discretion.” Id. (internal quotations and citations omitted).

We proceed to the merits of the claim. The Government must demonstrate that Fusse knew of and voluntarily joined the conspiracy. See United States v. Avery, 128 F.3d 966, 970 (6th Cir.1997). In ornease, the testimony of Brassel, Hicks, and Poteete repeatedly provided that Fusse knew of and removed the cocaine in the engine. Although Brassel and Poteete did not have direct contact with Fusse, Hicks testified that he and Fusse explicitly agreed that Fusse would remove the drugs from the engine in exchange for two kilograms of cocaine, and that Fusse did indeed do so.

Fusse rests his defense on discrepancies about whether Fusse was actually present at the shop when the Truck arrived. He notes that Poteete testified — contrary to Hicks — that Fusse was not at the shop when the three men arrived with the Truck. This is slightly misleading: Poteete affirmatively volunteered only that he did not see Fusse, not that he was not there. The stronger form — “it is definitely a fact that [Hicks] did not go into the shop and talk with [Fusse] for a while” — was a mere affirmation of counsel’s question. Moreover, the syntax of the question was a bit convoluted, and it is not unreasonable to conclude that Poteete did not fully grasp the question, particularly when his prior answer — which he put in his own words — suggested only that he did not see Fusse, not that Fusse was not there.

Similarly, Fusse notes that Brassel testified that he simply parked the Truck and got into the car with Poteete and Hicks, and that the three men then left the shop.

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111 F. App'x 374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fusse-ca6-2004.