United States v. Powell
2012 U.S. App. LEXIS 9851
| 4th Cir. | 2012Background
- Powell was indicted on one count of making, or aiding and abetting, a false entry in a bankruptcy-related document under 18 U.S.C. §§ 2, 1519 as part of a Pavlock-directed scheme.
- Pavlock controlled several shell entities (FIA and GIA) and used them to solicit investments and misappropriate funds.
- Pavlock arranged for Gratz limousines to be titled to FIA via McCarrell’s signing and notarization of Gratz signatures without Gratz paying; GIA never owned them.
- GIA filed a Chapter 11 and a bankruptcy trustee was appointed; Fluharty later learned of the Gratz transaction and investigated possible fraudulent transfer.
- Powell signed a January 29, 2009 letter alleging ownership of the Gratz vehicles by FIA, containing two allegedly false statements drafted by FIA's counsel using Pavlock-provided information.
- Powell challenged several jury instructions at trial, challenged by the defense; Powell argued for a mitigating role adjustment at sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether materiality is an element of § 1519 | Powell contends materiality must be proven. | Powell argues no materiality element is required. | Materiality not required; district court correct to omit. |
| Whether the advice-of-counsel defense should have been instructed | Powell seeks adv. of-counsel defense instruction. | No evidentiary foundation; no instruction warranted. | No abuse; defense not supported by the record. |
| Whether the jury should have been instructed that FIA ownership was true as a matter of law | Powell asserts Pennsylvania title certificates establish ownership. | Evidence supports multiple interpretations; not conclusive. | Correct to deny; jury could reasonably interpret ownership otherwise. |
| Whether prosecutorial remarks labeling defendants as 'liars' constitute reversible misconduct | Powell objects to the prosecutor's 'liars' characterization. | Remarks were permissible based on evidence; not plain error. | Not plainly improper; no plain-error reversal. |
| Whether Powell is entitled to a mitigating role adjustment under § 3B1.2 | Powell was minimally culpable and entitled to adjustment. | Powell's conduct was essential to the offense; no adjustment. | No clear error; district court reasonably denied adjustment. |
Key Cases Cited
- United States v. Wells, 519 U.S. 482 (1997) (materiality not required for § 1519 offenses)
- United States v. Hunt, 526 F.3d 739 (11th Cir. 2008) (no materiality element required under § 1519)
- United States v. Yielding, 657 F.3d 688 (8th Cir. 2011) (jury instruction without materiality element permissible)
- United States v. Sloley, 19 F.3d 149 (4th Cir. 1994) (advice-of-counsel defense requires evidentiary foundation)
- United States v. Gray, 47 F.3d 1359 (4th Cir. 1995) (district court may withhold defense instructions based on evidentiary review)
- United States v. Pratt, 239 F.3d 640 (4th Cir. 2001) (mitigating role adjustment requires assessment against elements of offense)
- United States v. Palinkas, 938 F.2d 456 (4th Cir. 1991) (role of defendant measured against offense elements)
- United States v. Allen, 446 F.3d 522 (4th Cir. 2006) (precise standard for reviewing sentencing determinations under Strickland)
- United States v. Strickland, 466 U.S. 668 (1984) (ineffective assistance standard)
- Weatherless, 734 F.2d 179 (4th Cir. 1984) (prosecutor may refer to a defendant as a liar under certain circumstances)