                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0126n.06
                           Filed: February 16, 2005
                           File Name: 05a0126n.06
                           Filed: February 16, 2006

                                           No. 02-6112

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )        ON APPEAL FROM THE
       Plaintiff-Appellee,                               )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE MIDDLE
v.                                                       )        DISTRICT OF TENNESSEE
                                                         )
ROGER FUSSE,                                             )                          OPINION
                                                         )
       Defendant-Appellant.                              )
                                                         )



BEFORE:        COLE and COOK, Circuit Judges; SPIEGEL, District Judge.*

       R. GUY COLE, JR., 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 co-

conspirators 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. He also seeks vacation of his sentence under

Blakely v. Washington, 542 U.S. __ (2004), on the ground that the Sentencing Guidelines violate the




       *
          The Honorable S. Arthur Spiegel, United States District Court, Southern District of Ohio,
sitting by designation.
No. 02-6112
United States v. Fusse

Sixth Amendment. For the following reasons, we AFFIRM the conviction but VACATE and

REMAND for re-sentencing consistent with United States v. Booker 543 U.S.__ (2005).

                                       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 relationship 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

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United States v. Fusse

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 to 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.”




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United States v. Fusse

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 the 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 our case, 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

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United States v. Fusse

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. This appears to diverge from

the testimony of Hicks, who claimed that he was the one that parked the Truck, that he then got out

and met with Fusse, and that he then drove off on his own. As to the discrepancy about meeting

with Fusse, however, Brassel does not affirmatively state that Hicks did not meet with Fusse; it is

possible that he omitted it from his brief summary of the events, especially given that he did not

witness the meeting between Hicks and Fusse. As for the discrepancy about who drove home and

in what order, that is ultimately a minor detail about events that occurred over a year before the trial

testimony.   Reviewed under the standard of clear and manifest abuse of discretion, these

inconsistencies do not negate the entirety of the testimony from Hicks and Brassel.

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United States v. Fusse

       Even if Fusse was absent from the shop when the Truck was dropped off, “[a] conspiracy

may be inferred from circumstantial evidence that can reasonably be interpreted as participation in

the common plan.” United States v. Blakeney, 942 F.2d 1001, 1010 (6th Cir. 1991). Here, the fact

that Hicks and Poteete both testified that on September 27, 2000, they returned to the shop, and that

Fusse gave Hicks a box containing cocaine (the day after the three men had dropped the Truck off

at the shop) suggests that there was indeed an agreement between Fusse and the others. It is highly

unlikely that Fusse was simply returning his customers’ narcotics out of courtesy.

       Moreover, there was evidence other than the testimony of the co-conspirators that tied Fusse

to the drugs. For one, the mere fact that Hicks felt secure leaving the Truck at Fusse’s shop and

asking Fusse to look inside the engine indicates that Fusse already knew what was going on: it is

unlikely that drug traffickers would risk exposing their merchandise to a non-participant. Officer

Taylor also testified that on September 28, 2000, he followed Brassel and Hicks—who were this

time transporting the Trailer—to a destination near the location of the shop. Finally, the statement

made by Fusse to Kennedy on February 21, 2001—that he needed to tell his wife “what’s going on

because she doesn’t know anything about this”—suggests consciousness of guilt.

B.     Hearsay

       Fusse also contends that the district court erred in admitting Brassel’s testimony about out-

of-court statements made by Hicks in which he told Brassel that Fusse had agreed to and was

helping him to remove the cocaine from the engine. The Government argues that the statements

were not offered for the truth of the matter, but instead were offered to explain why Brassel did what

he did on the day in question—that is, to explain why he felt comfortable leaving the Truck at the

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United States v. Fusse

shop. However, the district court provided no limiting instruction to the jury admonishing them to

consider the statements only for their effect on Brassel’s state of mind. Thus, even if the statements

could have been admitted for a more limited purpose, the lack of instruction to the jury meant that

the statements in fact were admitted for a much broader purpose.

       In any event, the Government argues that the statements fell within the exception for co-

conspirator hearsay. Federal Rule of Evidence 801(d)(2)(E) excepts from the definition of hearsay

“a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.”

To take advantage of this exception, the Government must demonstrate that: (1) there was a

conspiracy; (2) the defendant was a member of the conspiracy; and (3) the statement was made

during and in furtherance of the conspiracy. United States v. Clark, 18 F.3d 1337, 1341 (6th Cir.

1994). Although the hearsay itself may be used to determine whether the defendant was involved

in the conspiracy, “absent some independent, corroborating evidence of defendant's knowledge of

and participation in the conspiracy, the out-of-court statements remain inadmissible.” Id. at 1341-42

(emphasis in original).

       Fusse contends that at the time Brassel testified about the out-of-court statements made by

Hicks that implicated Fusse, there had been no independent evidence that Fusse was indeed a

member of any conspiracy. This is correct: the only prior witness was Agent Kennedy, who also

did not have any firsthand knowledge of an agreement between Hicks and Fusse. Moreover, Brassel

himself did not deal directly with Fusse or have any independent knowledge of Fusse’s involvement;

he was only told of Fusse’s involvement by Hicks. At the time that the co-conspirator hearsay was

admitted, then, there was no independent evidence that Fusse was involved in the conspiracy.

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No. 02-6112
United States v. Fusse

       That does not end the matter, however. A district court “may admit the statements in

question subject to a later ruling that this burden was met.” United States v. Emuegbunam, 268 F.3d

377, 395 (6th Cir. 2001). In other words, the statements may be admissible if sufficient independent

evidence of the defendant’s participation in the conspiracy comes in after the statements. This

independent evidence came from the horse’s mouth: Hicks later testified to his direct agreement with

Fusse. Moreover, Poteete also testified that he observed, on September 27, 2000, Fusse giving the

box of cocaine to Hicks. Thus, there was direct nonhearsay evidence of Fusse’s involvement in the

conspiracy, rendering the out-of-court statements admissible.

       One final note. When it first admitted the statements (during Brassel’s testimony), the

district court did not state that their admission was contingent on independent evidence of Fusse’s

involvement in the conspiracy, and the district court never made the finding that the condition had

later been fulfilled. In other words, the district court erroneously thought that the hearsay was

unconditionally admissible at the time of Brassel’s testimony. The district court’s error turned out

to be harmless, however, because the direct evidence that later came in through Hicks satisfied the

conditions that the district court should have placed on the statements’ admission.

C.     Sentence

       Pursuant to the Supreme Court’s recent pronouncement in United States v. Booker, 543 U.S.

__ (2005), Fusse is entitled to a re-sentencing. In Booker, the Supreme Court held that under the

Sixth Amendment, “[a]ny fact (other than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury

verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Booker,

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United States v. Fusse

543 U.S. __, slip op. at 20 (Stevens, J. for the Court). In this case, Fusse’s base offense level was

calculated using determinations of the quantities of drugs implicated by his conduct – findings that

were made by a judge, not a jury. The judge determined that Fusse was accountable for four

kilograms of cocaine. The jury found Fusse guilty of conspiracy to possess with intent to distribute

over 500 grams of cocaine.

        However, because Fusse did not raise this argument below, we may reverse his sentence only

if the district court committed plain error. United States v. Oliver, __F.3d__ (6th Cir. 2005), slip

op. at 6. Fusse satisfies the plain error test as set forth by United States v. Olano, 507 U.S. 725, 735

(1993). Here, the district court erred in applying the sentencing guidelines as mandatory, the error

is “plain” at this time, the error affects substantial rights because Fusse arguably received a higher

sentence as a result, and an error that leads to a Sixth Amendment violation seriously affects the

fairness, integrity, or public reputation of the judicial proceedings. Oliver, __F.3d__, slip op. at 6-8;

United States v. Hines, __F.3d __ (6th Cir. 2005), slip op. at 14-17. Consequently, we must remand

the case to the district court for re-sentencing consistent with the Supreme Court’s decision in

Booker.

                                        III. CONCLUSION

        For the preceding reasons, we AFFIRM the conviction and VACATE and REMAND

Fusse’s sentence for proceedings consistent with this opinion and United States v. Booker.




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