U.S. v. Powell
| Decision Date | 06 December 1978 |
| Docket Number | No. 77-3846,77-3846 |
| Citation | 587 F.2d 443 |
| Parties | 3 Fed. R. Evid. Serv. 1407 UNITED STATES of America, Plaintiff-Appellee, v. Daniel James POWELL, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Barry Tarlow (argued), Los Angeles, Cal., for defendant-appellant.
Stephen G. Nelson, Asst. U. S. Atty. (on the brief), Michael H. Walsh, U. S. Atty., Stephen G. Nelson, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California.
Before ELY and HUFSTEDLER, Circuit Judges, and KRAFT, * District Judge.
Powell appeals from his conviction for conspiracy to possess marihuana with intent to distribute it in violation of 21 U.S.C. §§ 841, 846. He contends that the district court prejudicially erred (1) in denying a brief continuance to enable him to obtain the appearance of a material witness, (2) in denying an evidentiary hearing in connection with his challenge to the validity of a search warrant directed to the home of an alleged co-conspirator, (3) in admitting, over objection, Powell's two prior convictions and a marihuana-smoking incident. We reverse the conviction for prejudicial errors in admitting the prior convictions, permitting proof of the marihuana-smoking episode, and in denying the continuance to permit the appearance of a material witness.
The Government's case rested on the testimony of Cheryl Sullivan, who identified Powell as the source for large quantities of marihuana that had been found in the residence she occupied with her paramour, Mark Stanley. Bolstering Sullivan's credibility was not an easy task. She had theretofore been convicted of a felony for possessing with intent to distribute the marihuana found in her garage. She had never made any statement implicating Powell during the period of more than three and one-half years from the date of her arrest until, following the affirmance of her conviction on appeal, she was faced with serving a five-year prison term. She then had strong motivation to cooperate with the Government by naming a person as the source. Powell was a likely candidate because he had been closely associated with Stanley and he had two prior convictions for marihuana trafficking.
In December, 1969, Powell and his brother sold three kilos of marihuana to California undercover narcotics agents, offenses for which both Powells were convicted. In January, 1973, Powell was arrested in a house in Chula Vista, California, in which was found 334 pounds of marihuana in the basement and 222 pounds of marihuana in the garage. He pleaded guilty to possession of marihuana with intent to distribute, and he was granted probation.
The key issue in this case was whether Powell supplied the marihuana that was found in Sullivan's garage. According to her testimony, Powell, Sullivan, and Stanley agreed to go into the marihuana business together in April, 1973. Under their agreement, Powell supplied money to Stanley and Sullivan to locate a safe storage house in the northern San Diego area. Powell supplied the marihuana, Stanley and Sullivan warehoused the merchandise, Stanley distributed it, and Sullivan kept the books. Sullivan and Stanley's roles in marihuana traffic were not contested. Both of them had been convicted for these very acts. Thus, the only real question was whether the marihuana that Stanley and Sullivan were vending came from Powell, rather than someone else. The major problem with Sullivan's identification of Powell as the source was her failure to make any statement implicating Powell for more than three and one-half years after her arrest.
Her explanation for her years of silence was a rather elaborate plot involving Powell, his lawyer, her own lawyer, and Stanley. She claimed that she had identified Powell as the source to her lawyer, who advised her against revealing Powell's identity as a part of a trial strategy developed by a "team," consisting of Powell, Stanley, Sullivan, Powell's lawyer, and Sullivan's lawyer. She testified that Powell arranged for her seeing his lawyer and that Powell had paid part of the legal fees for both her and Stanley. Powell's lawyer referred her to another lawyer. Powell's lawyer, testified, contradicting Sullivan's testimony on every point that involved him. He denied that Sullivan ever told him the source of the marihuana, and he said that he never told her to keep quiet. He testified that he had advised her to plead guilty. He also said that there was never any team of which he was a part.
When Sullivan testified about her lawyer's claimed complicity in a scheme to protect Powell and herself, defense counsel claimed surprise. Defense counsel immediately tried to reach Sullivan's lawyer, who had practiced law in San Diego. The prosecutor knew that Sullivan would implicate her lawyer and he also knew that Sullivan's lawyer was then in the South Pacific. After Sullivan's lawyer and Powell's lawyer testified on Friday, September 9, 1977, defense counsel located Sullivan's lawyer in the Eastern Caroline Islands. Sullivan's lawyer agreed to return to testify, but he needed four days to make the trip. Defense counsel moved for a continuance to obtain Sullivan's lawyer's testimony. We know from affidavits submitted in support of Powell's new trial motion that Sullivan's lawyer would have testified that Sullivan had never told him that she knew the source of the marihuana, that he had never advised her to remain silent to protect Powell or anyone else, and that her testimony concerning a conspiracy to obstruct justice was a complete fabrication. The district court denied the continuance on the ground that Sullivan's lawyer's testimony was not critical enough to justify a delay in the trial because Powell's lawyer had already contradicted much of Sullivan's testimony.
Powell testified in his own defense denying any involvement in marihuana traffic with Sullivan and Stanley. He said that Stanley was a good friend with whom he frequently made skin diving and fishing trips. No further elaboration of the testimony is necessary to dispose of the appeal.
On February 9, 1977, a superseding indictment was filed against Powell, Powell's brother, Stanley, and Sullivan who was named as an unindicted co-conspirator. Count 1 charged all four defendants with conspiracy to possess marihuana with intent to distribute, and count 2 charged them with possessing marihuana with intent to distribute. Powell was acquitted on the second count charging possession, but convicted on the first count charging conspiracy.
In pretrial motions, Powell sought an evidentiary hearing to challenge the veracity of an affidavit filed in support of the search warrant issued to search the Sullivan-Stanley residence. The information contained in the affidavit to support the search warrant was received from a confidential informant. The Government refused to disclose the identity of the informant on the ground that disclosure of the information would seriously imperil the informant's safety. The district court conducted In camera interviews with the informant and scrutinized the informant's entire FBI file. From that procedure, the court concluded that disclosure of the informant's identity or other informant discovery would not enable the defendants to make a required Prima facie showing of substantial falsehood. Therefore, the district court refused to compel revelation of the informant's identity and also refused to permit an evidentiary hearing to challenge the affidavit in support of the search warrant.
Under Brown v. United States (1973) 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 and Jones v. United States (1960) 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, Powell had automatic standing to challenge the validity of the search of the garage because one of the counts of the indictment charged him with "an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure." (Brown v. United States, supra, 411 U.S. at 229, 93 S.Ct. at 1569.) Despite the holdings of Brown and Jones, however, our court has held that an acquittal on the possession charge, forecloses a defendant from arguing on appeal that he had standing initially to challenge the search and seizure. Solely under the compulsion of United States v. Prueitt (9th Cir. 1976) 540 F.2d 995, we must deny standing to Powell to challenge the search of the Stanley-Sullivan residence because the only count upon which he was convicted was the conspiracy count. 1 Because we hold that Powell lacks standing to challenge the search warrant, it is unnecessary to reach any of the issues raised by Powell in attacking the validity of the warrant.
The district court has broad discretion in granting or denying a continuance to procure the presence of an absent witness, and the district court's decision on that question must not be disturbed in absence of an abuse of discretion. (Isaacs v. United States (1895) 159 U.S. 487, 16 S.Ct. 51, 40 L.Ed. 229; United States v. Thompson (9th Cir. 1977) 559 F.2d 552.) The district court denied the continuance on the ground that Sullivan's lawyer's testimony would be primarily cumulative because Powell's lawyer had contradicted much of Sullivan's testimony, and the probative value of any testimony that Sullivan's lawyer could give would be outweighed by the inconvenience attendant upon a continuance of the trial. The testimony of Sullivan's lawyer was not merely cumulative. His denial that Sullivan told him that Powell was the supplier was testimony that was directly relevant to the only seriously contested issue in the case. Powell's lawyer, of course, could not refute those portions of Sullivan's testimony directed to her conversations with her lawyer to which Powell's lawyer was not a party.
The Government argues that the defense request for a...
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