United States v. Joseph Cusack

827 F.2d 696, 1987 U.S. App. LEXIS 12257

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 15, 1987
• Docket: 86-3216
• Status: Published

Opinions

PER CURIAM:

Appellant, Joseph M. Cusack, was arrested on September 17, 1985, on a charge of possession of piperidine with intent to distribute phencyclidine (PCP). This arrest followed several months of surveillance by agents of the Tennessee Bureau of Investigation and the Drug Enforcement Administration (DEA). After his arrest, Cusack and his attorney met with agents of the DEA, at which time Cusack waived his right to remain silent and chose to provide information to the Government.¹ DEA agents subsequently used the information Cusack provided to help establish probable cause to obtain and execute a search warrant on a mini-storage site being used as a drug manufacturing laboratory. DEA agents discovered evidence during the search, which the Government later introduced at Cusack’s trial.²

On November 5, 1985, a federal grand jury returned a four-count indictment against Cusack. Count One charged that he had conspired to manufacture at least five hundred grams of PCP, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) (1982 & Supp. III 1985) and 21 U.S.C. § 846 (1982). Count Two charged that Cusack had violated 18 U.S.C. § 1952(a)(3) (1982) by his interstate transport of phenylmagnesium bromide in an effort to promote the conspiracy alleged in Count One. Count Three charged that Cusack had possessed piperidine with the intent to manufacture PCP, in violation of 21 U.S.C. § 841(d) (1982 & Supp. III 1985) and 18 U.S.C. § 2 (1982). Count Four charged Cusack with the interstate transportation of piperidine, in violation of 18 U.S.C. § 1952(a)(3) (1982). On February 5, 1985, a jury found Cusack guilty of all four crimes.

Cusack raises two issues in this appeal. First, he contends that the district court erred in denying his motion to suppress the evidence that the DEA agents seized when they executed the search warrant on the mini-storage unit. According to Cusack, Fed.R.Crim.P. 11(e)(6)(D)³ prohibits the Government from using this evidence, because it was discovered through the use of statements Cusack made during a plea negotiation. We disagree.

This circuit recently had the occasion to examine the sweep of the exclusionary rule of Rule 11(e)(6). In United States v. Rutkowski, 814 F.2d 594, 598-99 (11th Cir.1987) (per curiam), we considered the language of Rule 11(e)(6)(D) and the legislative history behind the Rule. Responding to the appellant’s claim that the trial court should have excluded evidence whose significance became apparent to the prosecution as a result of plea negotiations, we found it “clear that Congress never considered including derivative evidence in [Rule ll(e)(6)’s] prohibition.” Id. at 599. We therefore held that “evidence gained by the government that is not evidence of a statement made in plea negotiations is not barred by Rule 11(e)(6).” Id. Cusack presents no argument that leads us to doubt the correctness of the decision in Rutkowski. If, as Cusack argues, the Rule’s goal would be better served by excluding the “fruits” of plea negotiation statements, “it is for Congress and not for the courts alone to strike the appropriate balance among such values.” Id. (citation omitted).

Cusack’s second contention, that the district court erred by denying his motion for a judgment of acquittal on all counts, merits little discussion. Reviewing the evidence in the light most favorable to the Government, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), we find ample support for the court’s decision and the jury’s subsequent verdict. Among other things, the evidence showed that Cusack, using an alias and acting as the representative of a fictitious company, went to Tennessee to purchase the chemicals used in making PCP. Cu-sack paid for these purchases in cash and drove evasively after the purchases. In addition, a witness familiar with the smell of liquid PCP testified that she at one time smelled the odor on Cusack. Finally, Cu-sack’s testimony on the witness stand was simply not believable. In sum, we find no error in the district court’s denial of Cu-sack’s motions for judgments of acquittal.

AFFIRMED.

1 . The Government concedes that this meeting was for the purpose of negotiating a plea, pursuant to Fed.R.Crim.P. 11(e).

2 . Cusack apparently declined the Government’s final plea bargain offer.

3 . Fed.R.Crim.P. 11(e)(6)(D) provides as follows:

(e) Plea Agreement Procedure.

(6) Inadmissibility of Pleas, Plea Discussions, and Related Statements. Except as otherwise provided in this paragraph, evidence of the following is not, in any civil or

criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(D) any statement made in the course of plea discussions with an attorney for the government which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel.