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  • United States v. Powell, 10th Cir. (1998)

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    The United States Court of Appeals for the Tenth Circuit affirmed Stanley Powell's conviction on four counts of possession with intent to distribute crack cocaine. Police had surveilled Powell and witnessed three instances where an informant purchased crack cocaine from him. When police searched Powell's apartment, they found approximately 70 grams of crack cocaine. The Court rejected Powell's arguments that there was a constructive amendment to the indictment and that evidence from the search should have been suppressed. It determined the district court did not abuse its discretion in allowing certain witness testimony.

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    Filed: 1998-11-16 Precedential Status: Non-Precedential Docket: 97-1439

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    The United States Court of Appeals for the Tenth Circuit affirmed Stanley Powell's conviction on four counts of possession with intent to distribute crack cocaine. Police had surveilled Powell and witnessed three instances where an informant purchased crack cocaine from him. When police searched Powell's apartment, they found approximately 70 grams of crack cocaine. The Court rejected Powell's arguments that there was a constructive amendment to the indictment and that evidence from the search should have been suppressed. It determined the district court did not abuse its discretion in allowing certain witness testimony.

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    32 views6 pages

    United States v. Powell, 10th Cir. (1998)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Tenth Circuit affirmed Stanley Powell's conviction on four counts of possession with intent to distribute crack cocaine. Police had surveilled Powell and witnessed three instances where an informant purchased crack cocaine from him. When police searched Powell's apartment, they found approximately 70 grams of crack cocaine. The Court rejected Powell's arguments that there was a constructive amendment to the indictment and that evidence from the search should have been suppressed. It determined the district court did not abuse its discretion in allowing certain witness testimony.

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    of 6

    F I L E D

    United States Court of Appeals


    Tenth Circuit

    UNITED STATES COURT OF APPEALS

    NOV 16 1998

    TENTH CIRCUIT

    PATRICK FISHER
    Clerk

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    v.
    STANLEY D. POWELL,

    No. 97-1439
    (D.C. No. 96-CR-321-D)
    (Colorado)

    Defendant-Appellant.

    ORDER AND JUDGMENT *


    Before SEYMOUR, Chief Judge, BRORBY and BRISCOE, Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
    therefore ordered submitted without oral argument.
    Mr. Powell was convicted of four counts of possession with intent to
    distribute crack cocaine under 21 U.S.C. 841(a)(1) and aiding and abetting
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, or collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    *

    under 18 U.S.C. 2. We affirm.


    In 1996, the Denver police investigated Mr. Powell and surveilled three
    instances where a police informant purchased crack cocaine from Mr. Powell.
    The police acquired a search warrant and searched an apartment Mr. Powell
    occupied. They found approximately 70 grams of crack cocaine, which is an
    estimated 400 to 500 doses of street level crack cocaine.
    On appeal, Mr. Powell first argues the government constructively amended
    the indictment, contending the evidence against him supported a charge of sales
    or distribution of the drugs but not the indicted charge of intent to distribute. In
    support of his argument, he points out that the court instructed the jury on
    distribution despite having already instructed it on possession with intent to
    distribute.
    The Fifth Amendment requires that a defendant be tried only on charges
    handed down by a grand jury. Stirone v. United States, 361 U.S. 212, 217 (1960);
    United States v. Wright, 932 F.2d 868, 874 (10th Cir. 1990). A constructive
    amendment to broaden an indictment violates the Fifth Amendment and is
    reversible error per se. Wright, 932 F.2d at 874. We have held that a Fifth
    Amendment violation occurs when the terms of the indictment are in effect
    altered by the presentation of evidence and jury instructions which so modify
    essential elements of the offense charged that there is substantial likelihood that
    -2-

    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-

    apartment building. We review the trial court's decision to admit or exclude


    evidence for abuse of discretion. Breeden v. ABF Freight Sys. Inc., 115 F.3d
    749, 754 (10th Cir. 1997). The trial judge established a clear record that the
    testimony fell within the scope of 404(b) and 403, stating that the evidence
    related to Mr. Powells intent, motive and plan in connection with the sale and/or
    distribution of crack cocaine as set forth in the indictment. Rec., vol.VII, at 78.
    The court also made a finding that the probative value outweighed prejudice. We
    have reviewed the record and we conclude the district court acted well within its
    discretion in admitting Mr. Bridges testimony.
    For the reasons stated above, we AFFIRM the judgment of the district
    court in all particulars. 1

    ENTERED FOR THE COURT


    Stephanie K. Seymour
    Chief Judge

    Mr. Powells motion to expedite the appeal is granted. His motion for
    release pending appeal is denied as moot.
    1

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