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United States v. Fuesting

decided: April 15, 1988.


Appeal from the United States District Court for the Southern District of Illinois. No. 86-40019--James L. Foreman, Judge.

Wood and Posner, Circuit Judges, and Grant, Senior District Judge.*fn*

Author: Grant

GRANT, Senior District Judge.

Defendant Ronald Fuesting appeals his conviction on two counts of a superseding criminal indictment charging him with possession with intent to distribute marijuana, 21 U.S.C. § 841(a)(1), and with attempt to manufacture marijuana, 21 U.S.C. §§ 841(a)(1) and 846.

I. Facts

In the summer of 1985, the Illinois State Police were involved in a marijuana eradication program known as "Operation Kneecap". On July 31, 1985, Officers Larry Coughlin and Michael Summerville were returning via helicopter from a cutting operation when they observed what appeared to be a field of marijuana approximately 80 yards from the Fuesting residence, and a path leading from the field to the back door of the house. After landing, the field was confirmed to be marijuana and the area was secured.

Debra Fuesting, the defendant's wife, was subsequently observed driving away from the house and was stopped by police at a nearby roadblock. After being advised of her Miranda rights, Mrs. Fuesting was briefly detained for questioning concerning the marijuana field. Mrs. Fuesting voluntarily answered the questions put to her by Officer Harold Tarrant, and after initially denying any knowledge of the field, stated that the marijuana did in fact belong to her husband and that there could be more in the basement of their residence. Mrs. Fuesting thereafter agreed to accompany Officer Tarrant to the police station for further questioning. At the station, she was again advised of her rights. After consulting with an attorney and being advised by the police that she was not under arrest, Mrs. Fuesting left the police station without further questioning.

Based on the observations of the helicopter team and statements made by Mrs. Fuesting, the police sought a search warrant for the Fuesting home. A warrant, however, had not yet been issued when Mrs. Fuesting returned home. Officer Summerville approached Mrs. Fuesting and asked her to leave the premises. When she inquired about retrieving a few items from the house, Officer Summerville agreed to her request and, without Mrs. Fuesting's consent, accompanied her into the home.

A search warrant was issued and executed later that evening, resulting in the seizure of a quantity of marijuana and a number of items related to the production thereof from the basement of the Fuesting residence.

Robert Fuesting was arrested by state authorities on July 31, 1985, and was charged in an Illinois state court on August 1, 1985 with possession of marijuana with intent to deliver and with manufacturing marijuana. The state charges were dismissed nolle prosequied on September 13, 1985.

Similar charges were thereafter filed in the United States District Court for the Southern District of Illinois by way of a complaint on September 5, 1985. On September 18, 1985, a day before the preliminary hearing was to be conducted, the government moved to dismiss the complaint on the grounds that it "[was] going to present evidence and witnesses to the Grand Jury to further develop this case." The government's motion to dismiss was granted over Fuesting's objection on September 19, 1985.

In addition to the criminal complaint, the government filed a civil complaint for forfeiture against Fuesting. The civil complaint was filed on September 5, 1985; and on March 5, 1986, almost six months after criminal charges had been dismissed, the government served notice of its intent to take the discovery depositions of both Fuesting and his wife.*fn1

A two-count indictment was subsequently returned against Fuesting on May 22, 1986, charging him with possession with the intent to distribute marijuana and with manufacturing marijuana, 21 U.S.C. § 841(a)(1).

Fuesting was arraigned on June 6, 1986, and the cause scheduled for jury trial on July 1, 1986. Following his arraignment, Fuesting filed several pretrial motions, including: a motion in limine to suppress evidence of marijuana taken from the field adjoining his property; a motion to suppress evidence illegally seized from the Fuesting home; and a motion to dismiss the May 22, 1986 indictment.

A superseding indictment was filed on June 27, 1986 modifying Count II of the original indictment to charge Fuesting with "attempt to manufacture" marijuana, 21 U.S.C. §§ 841(a)(1) and 846. At his arraignment on July 1, 1986, Fuesting moved to dismiss the superseding indictment and to strike Count II of that indictment.

At a final pretrial conference conducted that same day, the district court found that the cause could not proceed to trial as scheduled given the outstanding pretrial motions, that additional argument was warranted on the motion to suppress, that any period of delay resulting from the pretrial motions was excludable for purposes of determining the defendant's speedy trial rights, and that the July 1, 1986 trial date should be stricken from the court's calendar. Each of the pending pretrial motions was denied, with the last order entered on August 28, 1986. The cause was thereafter reset for trial on November 3, 1986.

The jury trial began on November 5, 1986 and concluded on November 12 with a finding of guilt on both counts of the superseding indictment. Fuesting was sentenced to two years in prison on each count, with the sentences to run concurrently, followed by a special parole term of three years.

Fuesting now appeals his conviction, alleging that the district court erred (1) in denying the motions to dismiss the federal indictments filed on May 22, 1986 and June 27, 1986; (2) in denying the motions to suppress evidence seized from the marijuana field and from his home; and (3) in refusing to admit the testimony of ...

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