## 1997 D e c i sion s O p inion s of the U nit e d
S t a t e s C our t of Appe al s for the Thir d C ir c uit

5-12-1997 

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D ock e t 96-7242

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. e du/thir dc ir c uit_1997/102Filed 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 PowellCLYDE 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. An tonio Powell pleaded guilty and now appeals his sentence. His brother James Powell was convicted by a jury and ap peals his conviction for insufficiency of evidence. We wi ll affirm.

I.

In March and April of 1994, detectives of the Kings ton, Pennsylvania, Police Department investigated the dr ug trafficking of James and Antonio Powell. During the course of the investigation, the detectives made six contr olled purchases of cocaine base from Antonio Powell. On e ach drug delivery, James Powell accompanied his brother and occasionally acted as look-out. The brothers also m ade incriminating statements in a series of tape-record ed telephone conversations.

A federal grand jury indicted Antonio and James Pow ell on conspiracy and drug distribution charges. Antoni o Powell pleaded guilty to one count of conspiring to distribute and possess with intent to distribute co caine and cocaine base in violation of 21 U.S.C. § 846,1 two counts of

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1. 21 U.S.C. § 846 provides: "Any person who attemp ts or conspires to commit any offense defined in this subchapter shall be subject to the

2aiding and abetting distribution of cocaine in viol ation of 21

U.S.C. § 841(a)(1), three counts of aiding and abet ting
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 b rother pled guilty. James Powell was sentenced to one hund red 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 l evel 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 kno wingly 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 colloq uy 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 th e 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 rai ses only the issue of the sufficiency of the evidence supporting his conv iction. In a "pro se supplemental brief" filed by James Powell apparentl y without the assistance of counsel, Powell also alleges the dist rict court erred by (1) conducting an inadequate colloquy regarding his dec ision 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 subs tance involved in the drug transactions was crack cocaine. We have review ed these
contentions and find them to be without merit.

3II.

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 judgmen t of acquittal, we review sufficiency of evidence for pl ain 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 fac tual determination of willful obstruction of justice for clear error, and its legal interpretation and application of the sentencing guidelines under a plenary standard. Uni ted
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 coc aine base. He now appeals his conviction for aiding and abetting and conspiracy for insufficiency of evidence. To co nvict 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 b ring 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 u nity of purpose, the intent to achieve a common goal, and a n 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 th e aiding and abetting counts. James Powell accompanie d his
brother each time Antonio Powell sold cocaine or co caine base to undercover police officers. James Powell ei ther

4drove or rode in the vehicle transporting the cocai ne. 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. O n another, James Powell assured a police informant th at the cocaine the Powell brothers would sell the next day would match in quality the cocaine sold earlier by Antoni o Powell. Thus, there was strong evidence that when James Pow ell acted as a lookout and driver, he knew he was assis ting in
the sale of cocaine and cocaine base. Under the fac ts here,
there was more than sufficient evidence to convict for aiding and abetting.5

James Powell also challenges the sufficiency of evi dence on his conspiracy conviction. He admitted at trial that he distributed cocaine on virtually a daily basis duri ng 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 tha t if one of the brothers ran out of cocaine to sell, the oth er brother would supply it. As noted, James Powell assured a p olice
informant that the cocaine the Powell brothers woul d sell the next day would match in quality the cocaine sol d earlier by Antonio Powell. During a recorded telephone conversation, Antonio Powell consulted James Powell before setting the sales price for cocaine. These facts, t ogether with James Powell's actions as lookout and driver, provided
more than sufficient evidence to convict James Powe ll for conspiring with Antonio Powell to distribute cocain e.6

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5. James Powell failed to ask for judgment of acqui ttal 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 sta ndard did not apply,
there was sufficient evidence to convict.

6. James Powell failed to ask for judgment of acqui ttal 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 sta ndard did not apply,
there was sufficient evidence to convict. Powell do es not raise on appeal sufficiency of the evidence supporting his convicti on for distribution, and
therefore we will not review it.

5B.

Antonio Powell testified at his brother's trial tha t James Powell was not involved in the drug distribution co nspiracy. This testimony was contradicted by extensive govern ment evidence that James Powell accompanied Antonio Powe ll on each of the charged drug deliveries, acted as look- out, and made statements demonstrating his involvement in th e pricing and sale of the cocaine delivered by Antoni o Powell. Evidently Antonio Powell's testimony was rejected b ecause the jury found James Powell guilty on all counts.

After James Powell's trial, the probation departmen tfiled
an addendum to Antonio Powell's Pre-Sentence Investigation Report recommending increasing his of fense level for obstruction of justice because he testifi ed falsely at his brother's trial. At the sentencing hearing, the district court found that Antonio Powell had obstructed just ice and increased his offense level by two levels under U.S .S.G. § 3C1.1. U.S.S.G. § 3C1.1 provides: "If the defenda nt willfully obstructed or impeded, or attempted to ob struct or impede, the administration of justice during the investigation, prosecution, or sentencing of the in stant offense, increase the offense level by 2 levels." " [O]ffering perjured testimony is an attempt to obstruct justic e."
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 con spire
with him to distribute cocaine and cocaine base. Nonetheless, the district court's finding that Anto nio Powell offered perjured testimony at his brother's trial w as not clearly erroneous. As noted, there was substantial evidence that James Powell conspired with his brother to dis tribute cocaine and cocaine base. The jury rejected Antonio Powell's testimony when it found James Powell guilt y 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 th e witnesses.

6Instead, Antonio Powell contends that whether or no t his

testimony constituted perjury, it was not perjury i n "the instant offense," so that it could not constitute o bstruction 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 investig ation, prosecution, or sentencing of "the offense of convi ction."
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 l ong as those statements do not impede the investigation, prosecution, or sentencing of the crime for which h e was convicted and for which he is being sentenced. In W oods

, 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 convict ed.
Woods , 23 F.3d at 515-17. Similarly, in Belletiere , we held § 3C1.1 is not applicable where a defendant is conv icted on drug distribution and tax evasion charges but makes false statements to a probation officer about personal dr ug use which "had nothing to do with" the offenses for whi ch he was convicted and were neither material to or imped ed the government's investigation. Belletiere , 971 F.2d at 968.

Section 3C1.1 will apply if the false statements im peded 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 invest igation 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 de fendant was acquitted was not dispositive. Kim , 27 F.3d at 958-59.

We have not decided whether U.S.S.G. § 3C1.1 applie s where a defendant pleads guilty and then attempts t o impede the prosecution of a co-defendant for the sa me offenses. Other courts have decided this issue, but not uniformly. Compare United States v. Acuna , 9 F.3d 1442,

71446 (9th Cir. 1993) (§ 3C1.1 applies where defenda nt

pleaded guilty and then testified falsely in codefe ndant/ coconspirator's trial) and United States v. Bernaug h , 969 F.2d 858, 861 (10th Cir. 1992) (§ 3C1.1 applies whe re 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 app ly where defendant pleads guilty but refuses to testif y under grant of immunity at codefendant/coconspirator's tr ial) and
United States v. Banks , 751 F. Supp. 1161 (M.D. Pa. 1990) (§ 3C1.1 does not apply where defendant convicted a t 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 hea ring about
the criminal conduct of his codefendants. At his se ntencing hearing, the district court increased his offense l evel under U.S.S.G. § 3C1.1. On appeal, the Court of Appeals f or the Tenth Circuit affirmed, noting that though § 3C1.1 applies only where the defendant obstructs or attempts to o bstruct the investigation, prosecution, or sentencing of th e "instant offense," the sentencing guidelines "contemplate th at an `offense' may include the concerted criminal activi ty of multiple defendants." Bernaugh , 969 F.2d at 861 (citing U.S.S.G. Ch. 3, Pt. B, Intro. comment). For that re ason, the court held "the section 3C1.1 enhancement applies w here a defendant attempts to obstruct justice in a case cl osely 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 St ates v.
Acuna , 9 F.3d 1442, 1446 (9th Cir. 1993) (§ 3C1.1 applie s where defendant pleaded guilty and then testified f alsely in co-defendant/co-conspirator's trial).

Here, Antonio and James Powell were indicted as coconspirators for the same offenses in the same co unts 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 off ense is committed by more than one participant . . . ."). W hen
Antonio Powell testified that his brother had not c onspired

8with him to distribute cocaine, he was attempting t o

impede the prosecution of the same offenses for whi ch 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 und er 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 Ci rcuit observed that it had held in a previous case that § 3C1.1 obstruction enhancement applied only where the defe ndant 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 h is codefendant's trial had no effect on his guilty ple a and did not represent an attempt to avoid responsibility fo r the
offense for which he was convicted. For these reaso ns, 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 a void responsibility for the offense for which he was tri ed. We have not adopted a similar rule in this circuit. Mo reover, the court of appeals specifically noted that the di strict court
in Partee had an alternative to sentence enhancement -- it could punish the defendant's refusal to testify und er grant of immunity by holding him in criminal contempt. Th ere was no such possibility here.

For these reasons, the district court did not err w hen it applied § 3C1.1 after it determined that Antonio Po well had lied at his brother's trial and impeded his brother 's prosecution.

C.

At Antonio Powell's sentencing hearing, the distric t court
found the substance involved in Count VII was crack cocaine. Antonio Powell claims the laboratory repor t
involved in count VII states that the substance was

9"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 distric t 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 spe cifically advised Powell that he was charged in count VII wit h distributing crack cocaine. The government represen ted and Antonio Powell repeatedly admitted the substanc e in question was crack cocaine. When asked by the court if he disagreed with the factual basis for the plea as de scribed by the government, Powell did not deny that the substa nce 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 c rack cocaine. Antonio Powell once again stated that he understood the factual basis of the plea. "There ca n be no question that admissions to the court by a defendan t during a guilty plea colloquy can be relied upon by the court at the sentencing stage." United States v. Ja mes , 78 F.3d 851, 856 (3d Cir.), cert. denied , 117 S. Ct. 128 (1996). Here, Antonio Powell's admissions provided sufficie nt basis
for the court to conclude that the substance in cou nt VII
was crack cocaine. We see no error.

IV.

For the foregoing reasons, the judgments of convict ion
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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