United States v. Powell , 237 F. App'x 821 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4587
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARRYL ORLANDO POWELL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (4:04-cr-00011-jlk)
Submitted: June 22, 2007 Decided: July 30, 2007
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul G. Beers, GLENN FELDMANN DARBY & GOODLATTE, Roanoke, Virginia,
for Appellant. John L. Brownlee, United States Attorney, Edward A.
Lustig, Assistant United States Attorney, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darryl Orlando Powell was indicted for one count of
distributing more than five grams of cocaine base, in violation of
21 U.S.C. § 841(a)(1), and three counts of distributing cocaine
base, in violation of 21 U.S.C. § 841(a)(1), for selling cocaine
base to a police informant during an undercover operation.
The police informant and several police officers
testified at the federal jury trial. To demonstrate that the
substances found were in fact cocaine base, the Government
submitted stipulated certificates of analysis, which listed the
substance as “cocaine.” After the Government rested, it sought to
reopen its case to replace the certificates of analysis identifying
the substances as “cocaine” with certificates that identified the
substances as “cocaine base.” Over Powell’s objection, the
district court permitted the substitution of the certificates.
Powell then sought to have both sets of certificates shown to the
jury and a jury instruction permitting a conviction of the
lesser-included offense of distributing cocaine powder. The
district court denied Powell’s request. Thereafter, the jury
convicted Powell as to Count Four but was deadlocked as to the
remaining three counts. Prior to retrial, the Government filed a
motion to schedule the second trial outside of the statutory speedy
trial limits. Over Powell’s objections, the district court granted
the motion.
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Powell was later retried on the remaining counts. At the
close of evidence, Powell requested the jury be instructed as to a
lesser-included offense of distributing less than five grams of
cocaine base with respect to Count One. The district court denied
Powell’s request. Thereafter, Powell was found guilty as to all
three counts. The district court then sentenced Powell to an
aggregate 120 months in prison. Powell timely appealed, and we
affirm.
Powell argues the district court erred when it refused to
permit the jury to consider the first certificates of analysis that
identified the relevant substance as simply “cocaine” as well as
the certificates of analysis that identified the substance as
“cocaine base.” The Federal Rules of Evidence instruct that “[a]ll
relevant evidence is admissible, except as otherwise provided” by
law or rule. Fed. R. Evid. 402. Relevant evidence is defined
broadly as “evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.” Fed. R. Evid. 401. A failure to admit relevant
evidence without a legally supported reason constitutes an abuse of
discretion and may require a new trial. See Westfield Ins. Co. v.
Harris, 134 F.3d 608, 615 (4th Cir. 1998). We conclude the
district court did not abuse its discretion when it kept the first
certificates of analysis from the jury’s purview because their
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initial submission was the result of an administrative error, the
new certificates were not inconsistent with the first certificates,
and the jury would not be confused by having only the substituted
certificate to consider.
Next, Powell argues the jury should have been instructed
at the first trial as to the lesser-included offense of
distribution of cocaine powder and that a new trial was warranted
when the district court denied the request. In general, the
decision whether to give a jury instruction, and the content of
that instruction, are reviewed for abuse of discretion. See United
States v. Burgos, 55 F.3d 933, 935 (4th Cir. 1995). “For the
defendant to be entitled to a lesser-included offense
[instruction], the proof on the element that differentiates the two
offenses must be sufficiently in dispute to allow a jury
consistently to find the defendant innocent of the greater and
guilty of the lesser offense.” United States v. Baker, 985 F.2d
1248, 1258-59 (4th Cir. 1993). We conclude that the district court
properly denied Powell’s request for a lesser-included offense
instruction and subsequent motion for a new trial because there was
no evidence presented at trial that would permit a jury to convict
Powell of distributing cocaine powder.
Powell next contends his rights under the Speedy Trial
Act were violated. Specifically, Powell argues that the district
court erroneously granted the Government’s request for an extension
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to retry him on Counts One, Two, and Three over his objection.
Under the Speedy Trial Act, a retrial must commence within seventy
days from the date the act occasioning the retrial becomes final.
See 18 U.S.C. § 3161(e). However, if the judge grants a
continuance on his own motion or based on a request by the defense
or Government, the judge must find that the ends of justice served
by taking the action outweigh the interest of the public and
defendant in a speedy trial. 18 U.S.C. § 3161(h)(8)(A) (2000). We
conclude that the district court properly granted the Government’s
motion for an extension because Powell’s attorney’s scheduling
conflicts during the seventy-day trial window contributed to the
need for an extension.
Powell next argues he was entitled to a jury instruction
on Count One at his second trial that reflected a lesser-included
offense of distributing less than five grams of cocaine base. As
noted previously, in order to justify an instruction on a
lesser-included offense, “the testimony on the distinguishing
element must be sharply conflicting, or the conclusion as to the
lesser offense must be fairly inferable from the evidence
presented.” Walker, 75 F.3d at 179. We conclude the district
court properly denied Powell’s request for a lesser-included
offense instruction as to drug weight because the evidence did not
support such an instruction.
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Based on the foregoing, we affirm Powell’s convictions
and sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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