United States v. Powell
2011 U.S. App. LEXIS 14285
| 7th Cir. | 2011Background
- Powell was convicted on two counts of distributing five grams or more of crack cocaine under 21 U.S.C. § 841(a)(1) & (b)(1)(B) and received a 420-month sentence.
- Confidential informant Darnell Yarbrough conducted two controlled crack cocaine buys from Powell on January 17 and January 30, 2008 in East St. Louis, with officers receiving the drugs obtained.
- Evidence at trial included recordings of the January 17 calls, video recordings of the sales showing others present in the residence, and Powell’s jailhouse calls admitting guilt and discussing the drug trade.
- Powell’s sentence was accompanied by findings of dangerousness and leadership in a large drug distribution network, influencing the district court’s lengthy incarceration decision.
- Powell appeals on several grounds: admissibility of other-acts evidence under Rule 404(b), alleged improper sentencing-related testimony to the jury, the jury instruction on aiding and abetting, a motion for mistrial, and retroactive application of the Fair Sentencing Act of 2010; the Seventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rule 404(b) admissibility of other acts | Powell argues prior acts were inadmissible to prove intent. | Government contends acts show intent when Powell put intent at issue and evidence is probative. | Admissibility error found; however, harmless beyond a reasonable doubt. |
| Aiding-and-abetting instruction | Powell contends instruction was unwarranted and unfairly surprised. | Government contends record supports aiding-and-abetting liability and proper procedural basis. | Instruction warranted and not an abuse of discretion. |
| Mistrial due to sentencing discussion | Testimony implying lighter penalties violated due process and demanded mistrial. | District court properly instructed to disregard the improper comment. | No abuse of discretion; curative instruction sufficient. |
| Retroactive application of the Fair Sentencing Act | Powell seeks retroactive application for sentencing. | Government argues no retroactive effect on pre-enactment sentences. | Fair Sentencing Act does not apply retroactively; convictions affirmed. |
Key Cases Cited
- United States v. Hicks, 635 F.3d 1063 (7th Cir.2011) (limitations on Rule 404(b) for intent when intent not at issue)
- United States v. Manganellis, 864 F.2d 528 (7th Cir.1988) (general intent in distribution crimes; Rule 404(b) probative value)
- United States v. Aldaco, 201 F.3d 979 (7th Cir.2000) (aiding-and-abetting elements framework)
- United States v. Wimberly, 79 F.3d 673 (7th Cir.1996) (support for aiding-and-abetting instruction when record warrants)
- United States v. Heath, 188 F.3d 916 (7th Cir.1999) (classic elements of aiding and abetting)
- United States v. Ruiz, 932 F.2d 1174 (7th Cir.1991) (unfair surprise not required for aiding-and-abetting instruction)
- United States v. Galiffa, 734 F.2d 306 (7th Cir.1984) (aiders and abettors punished as principals; instruction permissible)
- United States v. Smith, 727 F.2d 214 (2d Cir.1984) (unfair surprise claim rejected in aiding-and-abetting context)
- United States v. Cooper, 375 F.3d 1041 (10th Cir.2004) (defense cannot claim unfair surprise where strategy anticipated instruction)
- United States v. Bell, 624 F.3d 803 (7th Cir.2010) (retroactivity of Fair Sentencing Act; pre-enactment sentencing)
- United States v. Fisher, 635 F.3d 336 (7th Cir.2011) (court declined to overrule Bell on retroactivity)
- United States v. Paladino, 401 F.3d 471 (7th Cir.2005) (plain-error review of pre-Booker sentencing issues)