U.S. v. Powell
| Decision Date | 04 September 1987 |
| Docket Number | No. 85-1984,85-1984 |
| Citation | 823 F.2d 996 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Thomas D. POWELL, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Robert P. Hurlbert, (court-appointed), Bloomfield Hills, Mich., for defendant-appellant.
Susan M. Daltuva, Asst. U.S. Atty., Detroit, Mich., Michael C. Leibson, Patricia G. Blake, Asst. U.S. Attys., for plaintiff-appellee.
Before NELSON and RYAN, Circuit Judges, and ENSLEN, * District Judge.
Appellant Thomas Powell entered a conditional guilty plea to a charge of having engaged in a continuing criminal enterprise through the importation and distribution of drugs over a period of years. He now appeals his conviction, contending that the grand jury that indicted him abdicated its duty independently to review and evaluate the evidence on which the indictment was supposed to have been based. Although Mr. Powell denies it, his appeal is essentially a challenge to the competency and sufficiency of the evidence presented to the grand jury. Because such matters are normally beyond the scrutiny of the federal courts, we shall affirm the conviction; in doing so, however, we note our disapproval of the manner in which the proceedings before the grand jury appear to have been handled.
On July 20, 1984, a federal grand jury in the Eastern District of Michigan indicted appellant Powell and two others on five counts. The first two counts charged violations of 21 U.S.C. Secs. 846 and 963 in the form of a conspiracy to possess marijuana with intent to distribute it and a conspiracy to import marijuana over a period beginning in 1972 and continuing through 1981. Counts Three and Four alleged violations of 21 U.S.C. Sec. 841(a)(1) in May of 1980 and July of 1981 by possession of marijuana with intent to distribute it. The final count charged the defendants with having violated 21 U.S.C. Sec. 848 by engaging in a continuing criminal enterprise that consisted of a decade of drug activities.
On December 3, 1985, the government filed a superceding information, corresponding to Count Four of the indictment, charging possession, with intent to distribute, of approximately 18,000 lbs. of marijuana. Mr. Powell then agreed to plead guilty to Count Five of the indictment (continuing criminal enterprise) and to the offense charged in the superceding information, possession of the 18,000 pounds of marijuana. The plea to the possession charge was unconditional, and the plea to the continuing criminal enterprise charge preserved certain issues for appellate consideration. It was agreed that if Mr. Powell prevailed on the appeal he would be allowed to withdraw his plea as to Count Five. It was further agreed that Counts One through Four of the indictment would be dismissed, and that state drug charges pending in Florida would be dropped also.
The district court accepted the guilty plea and sentenced Mr. Powell to concurrent ten-year terms for possession and for continuing criminal enterprise. Although a reversal of the continuing criminal enterprise conviction could affect neither the guilty plea nor the ten-year sentence for the possession offense charged in the information, such a reversal might result in Mr. Powell's becoming eligible for parole sooner than he otherwise would.
The record discloses that the indicting grand jury was initially sworn on March 1, 1983, and that during the course of its service it considered 131 different criminal matters. On their first day of duty, the grand jurors were told that they were an independent body and were not to act as a "rubber stamp" for the United States Attorney's Office. They were further informed that grand jurors may consider hearsay testimony, but have the right to request a witness possessing first-hand knowledge. The grand jury was to have a life span of 18 months, and although active service was to last only six months, for 12 months thereafter the grand jury was subject to recall to complete ongoing investigations.
The contested indictment was not returned until July 20, 1984. The transcript of the grand jury proceedings for that day contains the testimony of Edward Fontanive, an Internal Revenue Service agent who was involved in the investigation of the appellant and the two others named in the indictment. An Assistant United States Attorney distributed a proposed indictment prior to the agent's testimony and told the grand jurors that the agent would provide a summary of the case, "since this was one of the first matters that you have had in your long term of Grand Jury service." After Agent Fontanive was sworn, the prosecutor told him that she would like "to basically go through this indictment with you so that you can refresh the Grand Jury's recollection as far as the evidence that would be used to substantiate the various counts of this indictment." She requested that the agent specify what evidence related to each of the three individuals charged in the indictment.
The indictment is a 13 page document that enumerates over 30 overt acts, beginning in 1972 and continuing through 1981, involving the importation, storage, and distribution of marijuana and liquid hashish. In going through the indictment Agent Fontanive occasionally provided some elaboration, but most of the testimony (which takes up 40 pages of transcript) simply paraphrased the indictment's description of the overt acts and added the name or names of the individuals who had provided government investigators with the supporting information.
After the agent's review of the indictment, the Assistant United States Attorney asked the members of the grand jury if they had any questions for the agent or wanted a further review of the details on any of the numerous overt acts charged. Several grand jurors asked questions, and after all inquiries had been answered the prosecutor informed the grand jurors that:
The grand jurors posed no further questions, and the prosecutor, the agent, and the court reporter left the grand jury room. The record of the day's proceedings terminates at that point, and for purposes of this appeal we will assume that the grand jurors did not avail themselves of the opportunity to review the supporting witness statements to which Agent Fontanive referred in his testimony.
The only other evidence pertaining to Mr. Powell that appears to have been presented to the grand jury is described in the following rather skeletal stipulation:
The record before us contains no other reference to the unnamed "non-agent witness," or to that witness' testimony. We do know, however, that the testimony of Witness Paxton was read to the grand jury on November 4, 1983. Paxton's testimony was to the effect that Mr. Powell had imported "hash oil" in 1974; the testimony clearly supported Count Five of the indictment. (The indicting grand jury also heard testimony on certain tax law violations for which Mr. Powell was indicted and convicted in a separate criminal proceeding.)
Mr. Powell moved, among other things, for a dismissal of the entire indictment on the ground that the government had deprived the grand jury of the right and opportunity to review the evidence. Emphasizing that Agent Fontanive had no personal knowledge of the facts, and that his summary included various inaccuracies and omissions, Mr. Powell contended that the "grand jury was biased by being given only Agent Fontanive's conclusions and inferences and few or none of the underlying facts." Mr. Powell also moved to dismiss Count Five for failure to set forth sufficient predicate criminal offenses. After a hearing, both motions were denied.
* * *
* * *
The principal duties of grand jurors are to determine whether probable cause exists to believe that a crime has been committed and to protect the accused from unfounded criminal prosecutions. United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561 (1974). In discharging their office, grand jurors traditionally have been "accorded wide latitude to inquire into violations of criminal law," and their investigation is "unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials." Id. A grand jury proceeding is not an adversary hearing to determine the guilt or innocence of the particular individual accused, but an ex parte investigation that decides whether prosecution shall commence. Id. at 343-44, 94 S.Ct. at 617-18. ...
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