                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             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Precedential or Non-Precedential: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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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 self-
representation. 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

                    4
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.

                    5
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.

                    6
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,

                    7
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

                    8
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

                     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 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

                    10
