United States v. Powell

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4920
GLENN DEXTER POWELL,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-00-85)
Submitted: July 15, 2002
Decided: July 29, 2002
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed in part and reversed in part by unpublished per curiam opin-
ion.
COUNSEL
Terry N. Grimes, TERRY N. GRIMES, P.C., Roanoke, Virginia, for
Appellant. John L. Brownlee, United States Attorney, Craig J. Jacob-
sen, Assistant United States Attorney, Roanoke, Virginia, for Appel-
lee.
2 UNITED STATES v. POWELL
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Glenn Dexter Powell was convicted by a jury of abducting his
estranged wife, Kimberly Dawn Powell, and with use of a firearm
during the abduction. The evidence showed that Powell kidnapped
Kimberly and their three children at gunpoint from Kimberly’s stepfa-
ther’s home. The district court imposed consecutive sentences total-
ling 162 months and ordered Powell to pay restitution to Kimberly in
the amount of $8512.43, representing the cost of counseling sessions
for Kimberly and her children. Powell timely appealed.
I.
Powell first challenges the district court’s denial of his motion for
a continuance based on his mental state. The denial of a motion for
a continuance is reviewed for an abuse of discretion. Morris v.
Slappy, 461 U.S. 1, 11-12 (1983). A trial court abuses its discretion
when it denies a continuance based upon an unreasonable and arbi-
trary insistence on expeditiousness. Id. Here, the court found a contin-
uance unnecessary since Powell was competent to stand trial. A
person is competent to stand trial if (1) he can consult with his lawyer
with a reasonable degree of rational understanding and (2) he has a
rational as well as factual understanding of the proceedings against
him. Penry v. Lynaugh, 492 U.S. 302, 333 (1989).
On appeal, Powell essentially argues that, because he had been
diagnosed as depressed and because his medication had ceased after
he was transferred from Butner, a continuance should have been
granted. However, presence of a disease or condition is not the test
for competency, and Powell fails to analyze the applicable test. In
addition, the Forensic Evaluation from Butner opined that Powell suf-
fered from a minimal level of depression during the incident, but that
his symptoms had "resolved" since his arrival at the facility. Further-
UNITED STATES v. POWELL 3
more, contrary to his testimony, Powell’s medical records do not
reveal that he was, in fact, ever prescribed medication for his depres-
sion. Because there is no indication in the record that Powell was
incompetent to stand trial, the district court did not abuse its discre-
tion in denying his motion for a continuance.
II.
Powell next argues that the district court made numerous errors in
the admission of evidence. The evidentiary rulings of a district court
are given substantial deference. The district court commits a clear
abuse of discretion only when the court acts arbitrarily or irrationally.
United States v. Moore, 27 F.3d 969, 974 (4th Cir. 1994).
Over Powell’s objection, the district court permitted Kimberly to
testify that she left the marital home because of Powell’s infidelities
and gambling problem. On appeal, Powell argues that this evidence
was irrelevant and prejudicial. However, in his opening argument,
defense counsel stated that, just two days before the separation, Pow-
ell and Kimberly were attempting to adopt a fourth child. Counsel
appears to have raised this issue to infer that the separation came as
a surprise to Powell and impacted on his mental state. Thus, Kimber-
ly’s testimony as to why the marriage collapsed was relevant to dis-
pute Powell’s theory of the case, as well as to provide necessary
background on the marriage and give a complete picture of the situa-
tion.
Powell next challenges the admission of testimony concerning the
previous abductions of his children in 1989 and 1993. Rule 404(b) of
the Federal Rules of Evidence prohibits admission of prior bad acts
evidence to show later action in conformity therewith. However, Rule
404(b) provides for exclusion of such evidence only if it is admitted
to show character. It does not require exclusion of such evidence
offered to establish opportunity, motive, intent, preparation, plan,
knowledge, identity, or absence of mistake. Fed. R. Evid. 404(b).
Prior act evidence of this nature is admissible under Rule 404(b) if the
evidence is (1) relevant to some issue other than character;
(2) necessary to prove an element of the crime charged; and
(3) reliable. Id.4 UNITED STATES v. POWELL
Powell has failed to show that the court’s admission of the Rule
404(b) evidence was improper. Powell opened the door to the evi-
dence, after being specifically warned by the district court, by cross-
examining Kimberly regarding his defenses: (1) that he abducted his
children to protect them from molestation at the hands of Kimberly’s
stepfather and (2) that there was actually no abduction, rather Kim-
berly and the children voluntarily accompanied him on a sight-seeing
trip to Washington. The court’s admission of the evidence was proper,
because it furnished part of the context of the crime that explained
and rebutted Powell’s reasons for abducting his children. Thus, it was
admitted for the purpose of showing Powell’s plan and motive, as
well as the absence of his alleged belief that the abduction was actu-
ally a consensual vacation. Accordingly, the district court’s admission
of the evidence was neither arbitrary nor irrational.
Powell next claims that Sheila Stoner’s testimony regarding her
husband’s adoption of Powell’s son Aaron was irrelevant and the
court erred in denying his motion for mistrial. However, the district
court sustained Powell’s objection and instructed the jury to disregard
Stoner’s testimony pertaining to the adoption. Jurors are presumed to
follow instructions. United States v. Love, 134 F.3d 595, 603 (4th Cir.
1998). Thus, there was no error.
Powell next argues that the district court erred in overruling
defense counsel’s objection to the cross-examination of Powell
regarding whether he had ever visited Aaron or paid child support.
The extent and scope of cross-examination are within the sound dis-
cretion of the trial judge. United States v. McMillon, 14 F.3d 948, 956
(4th Cir. 1994). Here, Powell testified on direct that he loved Aaron
and missed him, and his testimony on direct tended to portray him as
a caring and involved father. As such, the cross-examination was
proper to impeach Powell’s veracity and credibility.
Powell next claims that the Government improperly questioned
him about his relationship with God and that the questions were argu-
mentative. However, Powell himself first brought up the fact that he
had "found God." The Government then asked questions seeking to
demonstrate a pattern in the three abductions: Powell would abduct
his children, then tell his wife at the time that he had "found God,"
and be forgiven. Moreover, the questions were not argumentative.
UNITED STATES v. POWELL 5
Instead, they were asked several times, because Powell refused to
answer.
Contrary to Powell’s assertions, the Government’s questions were
not designed to show that Powell’s religious beliefs impaired his cred-
ibility, see Fed. R. Evid. 610, but rather the questions illustrated Pow-
ell’s pattern of behavior and impeached Powell’s attempt to paint
himself as a pious person. Thus, the district court properly allowed
the Government to pursue this line of questioning.
Powell contends that the district court improperly permitted FBI
Special Agent Slater to testify that the FBI gets involved with kidnap-
ping cases when twenty-four hours have passed and it is "automati-
cally assumed that state lines have been crossed, thereby, giving us
federal jurisdiction." Powell asserts that this testimony was tanta-
mount to instructing the jury that state lines had been crossed in this
case. Powell is mistaken. The agent’s testimony merely provided the
background for how the FBI was brought into the case. The testimony
did not purport to be the standard of law for this specific case, and
indeed, the court instructed the jury that they were required to find
that Powell transported Kimberly in interstate commerce. Thus, there
was no error.
III.
Powell asserts that the court’s refusal to question jurors about
alleged comments made outside the courtroom during recess was
error. In determining whether to conduct a hearing regarding possible
jury contamination, the court must balance the probable harm result-
ing from the emphasis such action would place upon the misconduct
and the disruption involved in conducting a hearing against the likely
extent and gravity of the prejudice generated by the misconduct.
United States v. Ramos, 71 F.3d 1150, 1153 (5th Cir. 1996). In addi-
tion, because the trial court is in a better position to judge the mood
at trial and the predilections of the jury, the trial court is entitled to
broad discretion. Id.Here, the district court did not abuse its discretion. There was no
evidence that the jurors discussed the merits of the case. In addition,
when the jury returned, the court cautioned them about not discussing
6 UNITED STATES v. POWELL
the case with anyone. Because there was no substantial reason to fear
prejudice from any of the overheard comments, there was no error.
IV.
Powell next contends that the evidence was insufficient to support
his conviction for kidnapping Kimberly. To support a conviction, "the
evidence, when viewed in the light most favorable to the government,
must be sufficient for a rational trier of fact to have found the essen-
tial elements of the crime beyond a reasonable doubt." United States
v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993). Circumstantial as well
as direct evidence is considered, and the Government is given the
benefit of all reasonable inferences from the facts proven to those
sought to be established. United States v. Tresvant, 677 F.2d 1018,
1021 (4th Cir. 1982). To sustain a conviction under the federal kid-
napping statute, the Government must establish four essential ele-
ments: "1) the transportation in interstate commerce; 2) of an
unconsenting person who is; 3) held for ransom, reward or otherwise;
and 4) the acts were committed knowingly and willingly." United
States v. Osborne, 68 F.3d 94, 100 (5th Cir. 1995).
Powell maintains that the prosecution presented insufficient evi-
dence at trial to support his conviction for kidnapping because it
failed to show that Kimberly was transported in interstate commerce
against her will. Powell points to Kimberly’s testimony that Powell
told her, after abducting her and the children, that they needed to get
out of Virginia. They drove into D.C., and Powell wanted to get a
motel room. At that point, Kimberly testified that she suggested driv-
ing into Maryland where it would be cheaper and they would be able
to afford a room. Powell asserts that, since they drove into Maryland
at Kimberly’s suggestion, the Government failed to prove that the
interstate transportation was against Kimberly’s will.
Powell’s argument is without merit. First, Kimberly testified that
she had been abducted at gunpoint and threatened on several occa-
sions. Thus, Kimberly’s suggestion of driving to Maryland must be
considered in this context and could easily be viewed by a reasonable
jury as merely an attempt to placate Powell, rather than evidence that
Kimberly was a consenting victim. Next, even if crossing into Mary-
land was consensual, there is no evidence that Kimberly consented to
UNITED STATES v. POWELL 7
driving to D.C. Since that transportation alone was sufficient to sat-
isfy the statute, Powell’s argument fails.
V.
Powell next argues that the district court erred in failing to instruct
the jury with his proposed consent instruction. In reviewing the ade-
quacy of the district court’s chosen jury instructions, we allow the dis-
trict court much discretion and will not reverse as long as the
instructions, taken as a whole, adequately state the controlling law.
United States v. Hassouneh, 199 F.3d 175, 181 (4th Cir. 2000). The
district court did not abuse its discretion in declining to give Powell’s
consent instruction, because the consent of the victim was already
covered by other portions of the instructions given to the jury. Powell
does not contend that the instructions given were incorrect. Thus, his
claim is meritless.
VI.
Next, Powell challenges the district court’s decision to deny Pow-
ell’s request for a justification defense instruction. Powell contended
that he abducted Kimberly and his children in an attempt to save the
children from molestation at the hands of Kimberly’s stepfather. A
district court properly refuses to instruct the jury on a defense that,
wholly or regarding one element thereof, lacks support in the record.
United States v. Sarno, 24 F.3d 618, 621 (4th Cir. 1994). To establish
such support regarding a justification defense, a defendant must pro-
duce evidence that would allow a factfinder to conclude that he:
(1) was protecting someone from an unlawful and present
threat of death or serious bodily injury;
(2) did not recklessly place himself in a situation where he
would be forced to engage in criminal conduct;
(3) had no reasonable legal alternative (to both the crimi-
nal act and the avoidance of the threatened harm); and
(4) there existed a direct causal relationship between the
criminal action and the avoidance of the threatened
harm.
8 UNITED STATES v. POWELL
United States v. Crittendon, 883 F.2d 326, 330 (4th Cir. 1989).
Here, the evidence did not support a justification instruction. First,
while there was some evidence that Kimberly’s stepfather had made
inappropriate comments to her when she was a child, there was abso-
lutely no evidence of an immediate threat of bodily injury to the chil-
dren. In addition, there was no evidence that Powell’s use of force
was necessary, since he had ample opportunity to raise his concerns
before the family court, social services, or the police, none of which
he did. Thus, the district court did not err in refusing to instruct the
jury on a justification defense.
VII.
Powell moved for a new trial based on the following: (1) the dis-
trict court erred in admitting evidence concerning the 1989 and 1993
abductions of Powell’s children and (2) the Government improperly
compared Powell to Ted Bundy in its closing argument. For the rea-
sons discussed above, the district court properly admitted evidence of
the prior abductions.
Regarding the closing argument, Powell’s argument is misleading.
The Government actually was discussing the testimony of Powell’s
character witnesses and stated that "family members and friends see
only one (1) side of a person." The Government then referenced Ted
Bundy as another example of a situation where friends and family
members did not know someone as well as they thought they did.
Since there is nothing improper about this statement, the district court
did not abuse its discretion in denying Powell’s motion for a new
trial. See United States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995)
(standard of review).
VIII.
Powell next argues that the district court erred by enhancing his
offense level for providing perjurious testimony during his trial, pur-
suant to U.S. Sentencing Guidelines Manual § 3C1.1 (2000). Under
USSG § 3C1.1, a defendant’s offense level will be increased by two
levels if he willfully obstructed or impeded, or attempted to obstruct
UNITED STATES v. POWELL 9
or impede, the administration of justice during the course of the inves-
tigation, prosecution, or sentencing of the instant offense. The com-
mentary to this provision states that committing perjury may provide
a basis for applying the upward departure. USSG § 3C1.1 comment.
(n.4(b)). Whether Powell’s conduct obstructed justice is a factual
determination that this Court reviews under the clearly erroneous
standard of review. United States v. Self, 132 F.3d 1039, 1041 (4th
Cir. 1997).
If the defendant objects to the enhancement for committing perjury,
the district court must make independent findings necessary to estab-
lish that the testimony was perjurious. United States v. Stotts, 113
F.3d 493, 497 (4th Cir. 1997). It is preferable for the court to address,
in a separate finding, each individual element of perjury: (1) false tes-
timony; (2) concerning a material matter; and (3) made with the intent
to obstruct justice, rather than as a result of confusion or mistake.
United States v. Dunnigan, 507 U.S. 87, 94 (1993). However, if the
court’s singular finding encompasses all of these necessary factual
predicates, it is sufficiently justified. Id. at 95.
Here, the district court did not make detailed findings. Instead, the
district court found that Powell’s testimony that he was merely taking
his family on a vacation "just wasn’t true." In addition, the court
found Powell’s testimony on the whole "just wasn’t credible at all."
Moreover, the Government outlined the specific portions of Powell’s
testimony (the "vacation" defense and his claim that he never bran-
dished his gun) that supported the enhancement. Powell, on the other
hand, made no argument that his testimony concerned immaterial
matters or was the result of confusion or mistake. Given the argu-
ments and the court’s determination that Powell had clearly given
false testimony, we find that the court’s conclusions encompassed all
the necessary factual predicates. See United States v. Cook, 76 F.3d
596, 605-06 (4th Cir. 1996) (holding that court’s finding that defen-
dant had not testified truthfully and that his testimony was strained
regarding material facts to which he had already confessed was suffi-
cient to uphold § 3C1.1 enhancement).
IX.
Next, Powell asserts that the district court erred in assigning three
points to his criminal history based on a 1990 larceny conviction. In
10 UNITED STATES v. POWELL
order to count as a prior felony conviction for criminal history pur-
poses, the sentence for that conviction must exceed one year and one
month and must have resulted in the defendant being incarcerated for
a period of time within the fifteen years preceding the commencement
of the instant offense. USSG § 4A1.2(e)(1). Powell asserts that the
sentence for his larceny conviction was neither lengthy enough nor
recent enough to qualify under § 4A1.2(e).
At sentencing, Powell testified that he served only three to four
weeks for his larceny conviction. In response, the Government sub-
mitted a copy of the North Carolina Administrative Office of the
Courts docket sheet for the conviction, which showed that Powell was
ordered confined for two years. In addition, the district court had
already found Powell to be untruthful. Thus, weighing the documen-
tary evidence against Powell’s testimony, the district court’s ruling
was not clearly erroneous. In addition, as Powell committed the
instant offense on November 16, 2000, the prior conviction was
clearly within the fifteen year window provided for in USSG
§ 4A1.2(e)(1).
X.
Finally, Powell contends that the district court erred in ordering
him to pay $8512.32 in restitution as a result of psychological and
psychiatric counseling and hospitalization received by Kimberly and
two of their children. The Government concedes error, noting that
neither Kimberly nor the children suffered any bodily injury or physi-
cal injury as required under 18 U.S.C.A. § 3663A (West 2000 &
Supp. 2002). As the Government correctly notes, under § 3663A, res-
titution orders can only cover psychological care when there has been
a bodily injury. United States v. Follet, 269 F.3d 996, 1001 (9th Cir.
2001). We therefore reverse the court’s restitution order.
Based on the foregoing, we affirm Powell’s convictions, reverse
the restitution order, and affirm the remainder of Powell’s sentence.
We dispense with oral argument, because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART; REVERSED IN PART