United States v. Powell

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,
No. 97-1439
v. (D.C. No. 96-CR-321-D)
(Colorado)
STANLEY D. POWELL,
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This order and judgment is not binding precedent, except under the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
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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 government’s 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. Powell’s 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 jury’s
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
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(1985). The Court in Miller offered three factors to consider: prejudice to the
defendant’s ability to defend himself at trial, the general fairness of the trial, and
the indictment’s sufficiency to bar subsequent prosecution. Id. at 138 n.5. We
are not convinced the superfluous charge of aiding and abetting obstructed Mr.
Powell’s 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. Powell’s 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. Powell’s 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
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was sufficiently particular to satisfy the Fourth Amendment, and we review the
trial court’s 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 warrant’s
descriptions should prevent the officer from “generally rummaging through a
person’s 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
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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. Powell’s “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. Powell’s motion to expedite the appeal is granted. His motion for
1
release pending appeal is denied as moot.
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