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United States v. Scheibel

decided: March 16, 1989.

UNITED STATES OF AMERICA, APPELLEE,
v.
RONALD SCHEIBEL, DEFENDANT-APPELLANT



Appeal from a judgment of conviction in the United States District Court for the District of Connecticut (Peter C. Dorsey, Judge) for possession with intent to distribute more than five hundred grams of cocaine in violation of 21 U.S.C. § 841(a)(1). Appellant claims error in the admission of allegedly false exculpatory evidence and in jury instructions regarding the permissible use of that evidence. We affirm.

Van Graafeiland, Winter and Miner, Circuit Judges.

Author: Winter

WINTER, Circuit Judge

Appellant Ronald Scheibel appeals from his conviction in the District of Connecticut for possession with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) (1982). Scheibel claims that he was prejudiced by the district court's admission of allegedly false exculpatory evidence that was not sufficiently connected to him. Scheibel also claims that the district court erred in the limiting instructions and charge to the jury concerning the challenged evidence. We affirm.

BACKGROUND

At approximately 10:00 a.m. on December 27, 1986, Scheibel was clocked by state police officer James Brezniak as driving at 75 m.p.h. while heading eastbound on Interstate 84 ("I-84") in Tolland, Connecticut. Brezniak activated the police car's flashing lights and began to pursue Scheibel. Scheibel increased his speed to over 100 m.p.h., and Brezniak then contacted other officers, including one in an airplane. The officer in the airplane thereafter monitored Scheibel's movements.

During the chase, Scheibel exited I-84 onto Route 89, drove 500 feet, exited Route 89 and began driving west-bound on Frontage Road, a hilly, two-lane road approximately one and one-half miles long that ends in a cul-de-sac. Although Brezniak momentarily lost sight of Scheibel when Scheibel exited I-84, the police officer in the airplane maintained continuous observation of the car and kept Brezniak aware of Scheibel's position. While on Frontage Road, Scheibel continued to drive at approximately 90 m.p.h. Scheibel slowed considerably at a dip in the road, however, and then accelerated again to approximately 90 m.p.h. Scheibel was ultimately cornered by the police when he reached the cul-de-sac at the end of Frontage Road. When asked why he had refused to pull over, Scheibel stated that his driving license was under suspension and that he was afraid to stop. The police took Scheibel to the police barracks, returning along Frontage Road. A state trooper remained with Scheibel's car until it was towed from the cul-de-sac. No other cars were encountered on Frontage Road from the time the pursuit began until the time Scheibel's car was towed. Scheibel was charged with operating a motor vehicle without a license, speeding and engaging an officer in pursuit. The police seized $560.56 in cash from his wallet and an additional $2,000.00 in cash from a compartment in the driver's door of his car.

The drug charges at issue in the present case arose from the following events. Between 12:30 and 1:30 p.m. on the day of the chase and Scheibel's arrest, one Frank Plazek, an owner of land on Frontage Road, found a canvas bag near the dip in Frontage Road where Scheibel had slowed his car. Plazek found the bag while checking his property for litter and trespassers, something he did every day. Plazek had checked the same area the day before and earlier the same morning but had not seen the bag.

Plazek opened the bag and found: (i) two ziplock plastic bags containing white powder; (ii) a purple cloth Crown Royal bag; (iii) a manila envelope; and (iv) a note printed in capital letters stating COCA LEAF & INCENSE PROCAINE TETRACAINE CAFFEINE, CITRIC ACID.

Plazek's wife then called the police. Examination revealed that the white powder in one of the two ziplock bags consisted of 76.58 grams of 39% pure cocaine with a wholesale value of between $3,200 and $4,800. The powder found in the second bag consisted of 669.6 grams of 85.3% pure cocaine with a wholesale value of between $18,000 and $22,000. White cat hairs were found on the Crown Royal bag. Evidence at trial indicated that Scheibel owned a black and white kitten. In addition, expert testimony at Scheibel's trial identified Scheibel as the author of the note.

On January 18, 1988, six days after the selection of the jury for Scheibel's drug trial but just before the trial was to begin, Plazek, during his routine check of his property, discovered a second bag in plain view on top of snow in approximately the same location as the first bag. Plazek informed the police and gave them the bag. Inside the second bag the police found: (i) a manila envelope; (ii) a clear ziplock bag containing 111 grams of 84.75% pure cocaine with a wholesale value of between $2,800 and $4,400; and (iii) a three-by-five inch notecard which had the following note written on it in capital letters:

GEORGE,

LET'S CHANGE DROP. WE LOST PKG. LAST WEEK. THAT'S 3 TOO MANY. THINGS ARE SLOW AFTER NEW YEARS . . . ALWAYS BILL.

At trial, the handwriting expert was unable to determine the authorship of the note. It was, however, established that thirty-two white ...


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