United States v. Powell, 10th Cir. (1998)
United States v. Powell, 10th Cir. (1998)
NOV 16 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
No. 97-1439
(D.C. No. 96-CR-321-D)
(Colorado)
Defendant-Appellant.
the defendant may have been convicted of an offense other than that charged in
the indictment. United States v. Mills, 29 F.3d 545, 548 (10th Cir. 1994)
(citations omitted). If the discrepancy does not rise to this level, we review for
harmless error. See Wright, 932 F.2d at 874; Hunter v. New Mexico, 916 F.3d
595, 598-99 (10th Cir. 1990).
Here, the government did not modify any essential element of the
indictment. The governments proof of distribution concurrently proved all the
elements of possession with an intent to distribute. The video-taped evidence and
the testimony of witnesses that Mr. Powell was selling crack cocaine established
Mr. Powells intent to sell as well as his distribution of drugs. The inclusion of a
distribution instruction did not require the jury to look at facts or essential
elements different than the considerations for a charge of possession with intent
to distribute. Accordingly, there is no substantial likelihood Mr. Powell was
convicted of an offense other than that charged. We are further persuaded that
any variance between the conviction and the indictment was nominal and
harmless.
Second, Mr. Powell argues that no factual basis existed for the grand jurys
charge of aiding and abetting under 18 U.S.C. 2. [T]he right to a grand jury is
not normally violated by the fact that the indictment alleges more crimes or other
means of committing the same crime. United States v. Miller, 471 U.S. 130, 136
-3-
(1985). The Court in Miller offered three factors to consider: prejudice to the
defendants ability to defend himself at trial, the general fairness of the trial, and
the indictments sufficiency to bar subsequent prosecution. Id. at 138 n.5. We
are not convinced the superfluous charge of aiding and abetting obstructed Mr.
Powells ability to defend himself or had any effect on the general fairness of the
trial. Nor did it introduce a possibility of subsequent prosecution for the
underlying offense. Mr. Powells indictment thus did not violate his right to a
grand jury.
Mr. Powell also contends the instruction on aiding and abetting was
improper, denying him a fair trial. Because he did not object to the proposed jury
instructions below, we review for plain error. See United States v. Duran, 133
F.3d 1324, 1330 (10th Cir. 1998). Even assuming error in the instruction, we
conclude the error did not seriously affect the fairness of the trial, given the
overwhelming evidence of Mr. Powells drug activities. See Johnson v. United
States, 117 S. Ct. 1544, 1550 (1997).
Mr. Powell next claims certain evidence at trial should have been
suppressed because it resulted from a search warrant that was facially defective
under the Fourth Amendment for lack of particularity. He further asserts the
warrant lacked probable cause because the alleged drug sales did not take place
within the searched apartment. We review de novo whether the warrant at issue
-4-
was sufficiently particular to satisfy the Fourth Amendment, and we review the
trial courts findings of fact at a suppression hearing for clear error. United
States v. Williamson, 1 F.3d 1134, 1135 (10th Cir. 1993).
A warrant is sufficiently particular if it allows the searcher to reasonably
ascertain and identify the things authorized to be seized. United States v.
Hargus, 128 F.3d 1358, 1362 (10th Cir. 1997) (quoting United States v. Finnigin,
113 F.3d 1182, 1187 (10th Cir. 1997). The particularity of the warrants
descriptions should prevent the officer from generally rummaging through a
persons belongings. Id. (citing Lawmaster v. Ward, 125 F.3d 1341, 1347-48
(10th Cir. 1997)). The warrant here contains a clear and specific list of items
related to the drug charges and we hold it to be adequately particular.
Probable cause for a warrant requires that a reasonable person would
believe the articles sought would be found at the place to be searched. Id. The
evidence that Mr. Powell sold drugs in the doorway of the apartment and in the
lobby of the apartment building sufficiently satisfies this standard. The district
court properly denied suppression of evidence obtained through the search
warrant.
Finally, Mr. Powell submits the trial court violated Fed.R.Evid. 404(b) and
403 by allowing testimony of a witness, Mr. Bridges, that Mr. Powell asserts
improperly suggested he conducted drug transactions with passing cars outside the
-5-
Mr. Powells motion to expedite the appeal is granted. His motion for
release pending appeal is denied as moot.
1
-6-