1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-12-1997

United States v. Powell

Precedential or Non-Precedential:

Docket 96-7242

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Recommended Citation

"United States v. Powell" (1997). 1997 Decisions. Paper 102.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/102
Filed May 12, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

Nos. 96-7242 and 96-7274 

UNITED STATES OF AMERICA 

v. 

JAMES POWELL, 

Appellant at No. 96-7242 

ANTONIO POWELL, 

Appellant at No. 96-7274 

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(D.C. Criminal Nos. 95-cr-00055-1 and 95-cr-00055-2) 

Submitted Pursuant to Third Circuit LAR 34.1(a) 

March 10, 1997 

Before: BECKER, SCIRICA and ALITO, Circuit Judges

(Filed May 12, 1997) 

JOSEPH A. O'BRIEN, ESQUIRE 

Oliver, Price & Rhodes 

220 Penn Avenue, Suite 300 

P.O. Box 1409 

Scranton, Pennsylvania 18501-1409 

 Attorney for Appellant, 

 James Powell 
CLYDE K. MIDDLETON, ESQUIRE 

25 West Tioga Street 

Tunkhannock, Pennsylvania 

 18657-1422 

 Attorney for Appellant, 

 Antonio Powell 

WILLIAM S. HOUSER, ESQUIRE 

Office of United States Attorney 

309 Federal Building 

Scranton, Pennsylvania 18501 

 Attorney for Appellee 

OPINION OF THE COURT 

SCIRICA, Circuit Judge. 

Antonio and James Powell were indicted on federal 

charges for distributing cocaine and conspiracy. Antonio 

Powell pleaded guilty and now appeals his sentence. His 

brother James Powell was convicted by a jury and appeals 

his conviction for insufficiency of evidence. We will affirm. 

I.

In March and April of 1994, detectives of the Kingston, 

Pennsylvania, Police Department investigated the drug 

trafficking of James and Antonio Powell. During the course 

of the investigation, the detectives made six controlled 

purchases of cocaine base from Antonio Powell. On each 

drug delivery, James Powell accompanied his brother and 

occasionally acted as look-out. The brothers also made 

incriminating statements in a series of tape-recorded 

telephone conversations. 

A federal grand jury indicted Antonio and James Powell 

on conspiracy and drug distribution charges. Antonio 

Powell pleaded guilty to one count of conspiring to

distribute and possess with intent to distribute cocaine and 

cocaine base in violation of 21 U.S.C. § 846,1 two counts of 

_________________________________________________________________ 

1. 21 U.S.C. § 846 provides: "Any person who attempts or conspires to 

commit any offense defined in this subchapter shall be subject to the 

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aiding and abetting distribution of cocaine in violation of 21 

U.S.C. § 841(a)(1), three counts of aiding and abetting 

distribution of cocaine base in violation of 21 U.S.C. 

§ 841(a)(1), and one count of distributing cocaine base in 

violation of 21 U.S.C. § 841(a)(1).2 James Powell pleaded not 

guilty and elected to represent himself at trial.3 A jury 

convicted James Powell on each count to which his brother 

pled guilty. James Powell was sentenced to one hundred 

and fifty months imprisonment. Antonio Powell was 

sentenced to eighty-seven months imprisonment. 

James Powell appeals the sufficiency of evidence 

supporting his conviction.4 Antonio Powell appeals his 

sentence, specifically an increase in his offense level for 

obstruction of justice and reliance on an allegedly incorrect 

laboratory report. 

_________________________________________________________________ 

same penalties as those prescribed for the offense, the commission of 

which was the object of the attempt or conspiracy."

2. 21 U.S.C. § 841(a) provides, in part: "Except as authorized by this 

subchapter, it shall be unlawful for any person knowingly or 

intentionally -- (1) to manufacture, distribute, or dispense, or possess 

with intent to manufacture, distribute, or dispense, a controlled 

substance." 

3. The district court conducted an extensive colloquy with the defendant 

regarding the seriousness of the charged offenses, range of allowable 

punishment, and the perils of self-representation. The court held another 

discussion with Powell in chambers regarding these matters and sent 

Powell a letter summarizing the court's views on the perils of selfrepresentation. The court then appointed counsel to be present at trial 

and to assist Powell. 

4. James Powell's counseled brief to this court raises only the issue of 

the sufficiency of the evidence supporting his conviction. In a "pro se

supplemental brief" filed by James Powell apparently without the 

assistance of counsel, Powell also alleges the district court erred by (1) 

conducting an inadequate colloquy regarding his decision to represent 

himself at trial; (2) enhancing his sentence under U.S.S.G. § 3C1.1 for 

perjury; and (3) ruling at sentencing that the substance involved in the 

drug transactions was crack cocaine. We have reviewed these 

contentions and find them to be without merit. 

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II.

The district court had jurisdiction under 18 U.S.C.

§ 3231. We have jurisdiction under 28 U.S.C. § 1291. If a 

defendant fails to file a timely motion for judgment of 

acquittal, we review sufficiency of evidence for plain error. 

United States v. Gaydos, 108 F.3d 505, 509 (3d Cir. 1997). 

We review adjustments under U.S.S.G. § 3C1.1 under a 

two-part standard. We review a district court's factual 

determination of willful obstruction of justice for clear error, 

and its legal interpretation and application of the

sentencing guidelines under a plenary standard. United

States v. Belletiere, 971 F.2d 961, 964 (3d Cir. 1992); 

United States v. Cusumano, 943 F.2d 305, 315 (3d Cir. 

1991). 

III.

A. 

James Powell was convicted of distributing cocaine base, 

conspiring to distribute cocaine and cocaine base, and 

aiding and abetting distribution of cocaine and cocaine 

base. He now appeals his conviction for aiding and abetting 

and conspiracy for insufficiency of evidence. To convict for 

aiding and abetting, the government must prove that the 

defendant associated himself with the venture, that he 

participated in it as something that he wished to bring 

about, and that he sought by his action to make it succeed. 

United States v. Jenkins, 90 F.3d 814, 821 (3d Cir. 1996); 

United States v. Bey, 736 F.2d 891, 895 (3d Cir. 1984). To 

convict for conspiracy, the government must prove unity of 

purpose, the intent to achieve a common goal, and an 

agreement to work together toward that goal. All of these 

elements, including the existence of the agreement, may be 

proved by circumstantial evidence. United States v.

Anderskow, 88 F.3d 245, 253 (3d. Cir.), cert. denied, 117 S. 

Ct. 613 (1996). 

Substantial evidence supported his conviction on the 

aiding and abetting counts. James Powell accompanied his 

brother each time Antonio Powell sold cocaine or cocaine 

base to undercover police officers. James Powell either 

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drove or rode in the vehicle transporting the cocaine. On 

three occasions, James Powell was a look-out during the 

drug transaction. On one occasion, Antonio Powell 

consulted him before setting a price for cocaine. On 

another, James Powell assured a police informant that the 

cocaine the Powell brothers would sell the next day would 

match in quality the cocaine sold earlier by Antonio Powell. 

Thus, there was strong evidence that when James Powell 

acted as a lookout and driver, he knew he was assisting in 

the sale of cocaine and cocaine base. Under the facts here, 

there was more than sufficient evidence to convict for 

aiding and abetting.5 

James Powell also challenges the sufficiency of evidence 

on his conspiracy conviction. He admitted at trial that he 

distributed cocaine on virtually a daily basis during March 

and April 1994. A witness testified that James and Antonio 

Powell lived together, that both sold cocaine, that they 

shared plastic bags to package the cocaine, and that if one 

of the brothers ran out of cocaine to sell, the other brother 

would supply it. As noted, James Powell assured a police 

informant that the cocaine the Powell brothers would sell 

the next day would match in quality the cocaine sold earlier 

by Antonio Powell. During a recorded telephone 

conversation, Antonio Powell consulted James Powell before 

setting the sales price for cocaine. These facts, together 

with James Powell's actions as lookout and driver, provided 

more than sufficient evidence to convict James Powell for 

conspiring with Antonio Powell to distribute cocaine.6 

_________________________________________________________________ 

5. James Powell failed to ask for judgment of acquittal at the conclusion 

of the government's case-in-chief or at the end of the trial. Therefore, we 

review for plain error. Even if the plain error standard did not apply, 

there was sufficient evidence to convict. 

6. James Powell failed to ask for judgment of acquittal at the conclusion 

of the government's case-in-chief or at the end of the trial. Therefore, we 

review for plain error. Even if the plain error standard did not apply, 

there was sufficient evidence to convict. Powell does not raise on appeal 

sufficiency of the evidence supporting his conviction for distribution, and 

therefore we will not review it. 

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B.

Antonio Powell testified at his brother's trial that James 

Powell was not involved in the drug distribution conspiracy. 

This testimony was contradicted by extensive government 

evidence that James Powell accompanied Antonio Powell on 

each of the charged drug deliveries, acted as look-out, and 

made statements demonstrating his involvement in the 

pricing and sale of the cocaine delivered by Antonio Powell. 

Evidently Antonio Powell's testimony was rejected because 

the jury found James Powell guilty on all counts. 

After James Powell's trial, the probation departmentfiled 

an addendum to Antonio Powell's Pre-Sentence 

Investigation Report recommending increasing his offense 

level for obstruction of justice because he testified falsely at 

his brother's trial. At the sentencing hearing, the district 

court found that Antonio Powell had obstructed justice and 

increased his offense level by two levels under U.S.S.G. 

§ 3C1.1. U.S.S.G. § 3C1.1 provides: "If the defendant 

willfully obstructed or impeded, or attempted to obstruct or 

impede, the administration of justice during the 

investigation, prosecution, or sentencing of the instant 

offense, increase the offense level by 2 levels." "[O]ffering 

perjured testimony is an attempt to obstruct justice." 

United States v. Bethancourt, 65 F.3d 1074, 1081 (3d Cir. 

1995) (citing U.S.S.G. § 3C1.1 Application Note 3(b)), cert.

denied, 116 S. Ct. 1032 (1996). 

Antonio Powell does not contest the district court's 

factual determination that he committed perjury at his 

brother's trial when he testified James did not conspire 

with him to distribute cocaine and cocaine base. 

Nonetheless, the district court's finding that Antonio Powell 

offered perjured testimony at his brother's trial was not 

clearly erroneous. As noted, there was substantial evidence 

that James Powell conspired with his brother to distribute 

cocaine and cocaine base. The jury rejected Antonio

Powell's testimony when it found James Powell guilty on all 

counts. Moreover, the district judge who sentenced Antonio 

Powell presided at his brother's trial. Therefore, the judge 

was well-positioned to assess the credibility of the 

witnesses. 

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Instead, Antonio Powell contends that whether or not his 

testimony constituted perjury, it was not perjury in "the 

instant offense," so that it could not constitute obstruction 

of justice under U.S.S.G. § 3C1.1. 

We have held U.S.S.G. § 3C1.1 applies only when a 

defendant has made efforts to obstruct the investigation, 

prosecution, or sentencing of "the offense of conviction." 

United States v. Kim, 27 F.3d 947, 958 (3d Cir. 1994); 

United States v. Woods, 24 F.3d 514, 516 (3d Cir. 1994); 

United States v. Belletiere, 971 F.2d 961, 967-68 (3d Cir. 

1992). Thus, § 3C1.1 does not apply if a defendant makes 

false statements about other crimes or events, so long as 

those statements do not impede the investigation, 

prosecution, or sentencing of the crime for which he was 

convicted and for which he is being sentenced. In Woods, 

for example, we held § 3C1.1 does not apply where a

defendant is convicted on armed robbery charges and

subsequently makes false statements to government 

investigators about his friends' participation in a robbery 

for which the defendant was not indicted or convicted. 

Woods, 23 F.3d at 515-17. Similarly, in Belletiere, we held 

§ 3C1.1 is not applicable where a defendant is convicted on 

drug distribution and tax evasion charges but makes false 

statements to a probation officer about personal drug use 

which "had nothing to do with" the offenses for which he 

was convicted and were neither material to or impeded the 

government's investigation. Belletiere, 971 F.2d at 968. 

Section 3C1.1 will apply if the false statements impeded 

the investigation or prosecution of the charges for which 

the defendant is convicted. In Kim, for example, we held 

that § 3C1.1 applies where a defendant made false 

statements which obstructed the government's investigation 

of the drug possession charges for which defendant was 

later convicted. The fact that the false statements were also 

arguably related to a conspiracy count for which defendant 

was acquitted was not dispositive. Kim, 27 F.3d at 958-59. 

We have not decided whether U.S.S.G. § 3C1.1 applies 

where a defendant pleads guilty and then attempts to 

impede the prosecution of a co-defendant for the same 

offenses. Other courts have decided this issue, but not 

uniformly. Compare United States v. Acuna, 9 F.3d 1442, 

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1446 (9th Cir. 1993) (§ 3C1.1 applies where defendant 

pleaded guilty and then testified falsely in codefendant/ 

coconspirator's trial) and United States v. Bernaugh, 969 

F.2d 858, 861 (10th Cir. 1992) (§ 3C1.1 applies where 

defendant pleaded guilty to offense but lied about the 

extent of codefendants' participation), with United States v.

Partee, 31 F.3d 529 (7th Cir. 1994) (§ 3C1.1 does not apply 

where defendant pleads guilty but refuses to testify under 

grant of immunity at codefendant/coconspirator's trial) and 

United States v. Banks, 751 F. Supp. 1161 (M.D. Pa. 1990) 

(§ 3C1.1 does not apply where defendant convicted at trial 

testifies falsely at separate trial of co-defendant), aff'd on

other grounds, 931 F.2d 52 (3d Cir. 1991) (Table). 

In United States v. Bernaugh, a defendant provided 

materially false information at his guilty plea hearing about 

the criminal conduct of his codefendants. At his sentencing 

hearing, the district court increased his offense level under 

U.S.S.G. § 3C1.1. On appeal, the Court of Appeals for the 

Tenth Circuit affirmed, noting that though § 3C1.1 applies 

only where the defendant obstructs or attempts to obstruct 

the investigation, prosecution, or sentencing of the "instant 

offense," the sentencing guidelines "contemplate that an 

`offense' may include the concerted criminal activity of 

multiple defendants." Bernaugh, 969 F.2d at 861 (citing 

U.S.S.G. Ch. 3, Pt. B, Intro. comment). For that reason, the 

court held "the section 3C1.1 enhancement applies where a 

defendant attempts to obstruct justice in a case closely 

related to his own, such as that of a codefendant." Id. 

Bernaugh was cited with approval and followed by the 

Court of Appeals for the Ninth Circuit in United States v.

Acuna, 9 F.3d 1442, 1446 (9th Cir. 1993) (§ 3C1.1 applies 

where defendant pleaded guilty and then testified falsely in 

co-defendant/co-conspirator's trial). 

Here, Antonio and James Powell were indicted as 

coconspirators for the same offenses in the same counts of 

the same indictment. As the Tenth Circuit noted in 

Bernaugh, the sentencing guidelines contemplate that an 

offense may be committed by more than one defendant. See

U.S.S.G. Ch. 3, Pt. B, Intro. comment ("When an offense is 

committed by more than one participant . . . ."). When 

Antonio Powell testified that his brother had not conspired 

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with him to distribute cocaine, he was attempting to 

impede the prosecution of the same offenses for which he 

was convicted. 

This case may be distinguished from United States v.

Partee, 31 F.3d 529 (7th Cir. 1994). In Partee, the 

defendant pleaded guilty but refused to testify under grant 

of immunity at a codefendant/coconspirator's trial. The 

district court enhanced his sentence under U.S.S.G.

§ 3C1.1, and the defendant appealed. The Seventh Circuit 

observed that it had held in a previous case that § 3C1.1 

obstruction enhancement applied only where the defendant 

acted with specific intent to avoid responsibility for the 

offense for which he was being tried. Id. at 531 (citing 

United States v. Haddad, 10 F.3d 1252 (7th Cir. 1993)). The 

court noted the defendant's refusal to testify at his 

codefendant's trial had no effect on his guilty plea and did 

not represent an attempt to avoid responsibility for the 

offense for which he was convicted. For these reasons, 

enhancement under § 3C1.1 was inappropriate. Id. 

The Partee decision appears to have turned on the 

Seventh's Circuit's prior decision in Haddad that the 

§ 3C1.1 obstruction enhancement can be applied only

where the defendant acted with specific intent to avoid 

responsibility for the offense for which he was tried. We 

have not adopted a similar rule in this circuit. Moreover, 

the court of appeals specifically noted that the district court 

in Partee had an alternative to sentence enhancement -- it 

could punish the defendant's refusal to testify under grant 

of immunity by holding him in criminal contempt. There 

was no such possibility here. 

For these reasons, the district court did not err when it 

applied § 3C1.1 after it determined that Antonio Powell had 

lied at his brother's trial and impeded his brother's 

prosecution. 

C.

At Antonio Powell's sentencing hearing, the district court 

found the substance involved in Count VII was crack

cocaine. Antonio Powell claims the laboratory report 

involved in count VII states that the substance was

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"cocaine base" and a "powder." Powell observes that cocaine 

base is a crystalline substance, not a powder, and that the 

report may be inaccurate. Powell argues the district court 

erred when it relied on the report to calculate his base level 

without ordering retesting of the substance. 

At his guilty plea colloquy, the district court specifically 

advised Powell that he was charged in count VII with 

distributing crack cocaine. The government represented 

and Antonio Powell repeatedly admitted the substance in 

question was crack cocaine. When asked by the court if he 

disagreed with the factual basis for the plea as described by 

the government, Powell did not deny that the substance in 

count VII was crack cocaine. The court then advised Powell 

that if the case proceeded to trial, the government would 

have to prove that the substance in count VII was crack 

cocaine. Antonio Powell once again stated that he 

understood the factual basis of the plea. "There can be no 

question that admissions to the court by a defendant 

during a guilty plea colloquy can be relied upon by the 

court at the sentencing stage." United States v. James, 78 

F.3d 851, 856 (3d Cir.), cert. denied, 117 S. Ct. 128 (1996). 

Here, Antonio Powell's admissions provided sufficient basis 

for the court to conclude that the substance in count VII 

was crack cocaine. We see no error. 

IV.

For the foregoing reasons, the judgments of conviction 

and sentences will be affirmed. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

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