U.S. v. Powell, 82-1473

• Decision Date: 10 November 1983
• Docket Number: No. 82-1473,82-1473
• Citation: 708 F.2d 455
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Betty Lou POWELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 455

708 F.2d 455

UNITED STATES of America, Plaintiff-Appellee, v. Betty Lou POWELL, Defendant-Appellant.

No. 82-1473.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 8, 1983.

Decided June 14, 1983.

Rehearing Denied Nov. 10, 1983.

Charles F. Gorder, Jr., Asst. U.S. Atty., argued, Peter K. Nunez, U.S. Atty., Charles F. Gorder, Jr., Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.

Barry D. Utsinger, Utsinger & Williamson, San Diego, Cal., for defendant-appellant.

Appeal from the United States District Court for the Southern District of California.

Before CHAMBERS, FLETCHER and NELSON, Circuit Judges.

CHAMBERS, Circuit Judge:

Betty Powell was indicted in a fifteen count indictment and acquitted of all charges except three counts (under 18 U.S.C. Sec. 843(b) (1976)) of using a telephone to facilitate certain drug offenses, and one count (under 18 U.S.C. Sec. 1001 (1976)) of giving a false statement to the magistrate in applying for leave to proceed in forma pauperis. She was given four concurrent four year sentences and she appeals.

Count 1, of which she was acquitted, charged a conspiracy between appellant and her husband and son and "divers other persons" to knowingly and intentionally possess cocaine with intent to distribute it, in violation of 21 U.S.C. Secs. 846 and 841(a)(1) (1976). Listed as three of the overt acts to support this conspiracy charge were telephone calls made by or to her on April 11, 1982 and on April 16, 1982. These same telephone calls are the subject of Counts 3, 4 and 5 respectively--the counts of which she was convicted.

Appellant argues, on appeal, that she is the victim of inconsistent verdicts. The government responds that there is no inconsistency because Counts 3, 4 and 5 charge use of a telephone to facilitate not only conspiracy to possess and distribute cocaine, but also use of the telephone to facilitate possession with intent to distribute cocaine. The government argues that the jury determined that she was guilty of facilitating the possession by someone other than those persons implicated in the conspiracy charged in Count 1.

We have reviewed the record and we are not convinced that there is evidence to support the government's claim that "someone other than" the conspirators named in Count 1 had possession and that appellant's telephone calls facilitated that possession. Thus, on the facts of this case, we must reverse the convictions as to Counts 3, 4 and 5. United States v. Bailey, 607 F.2d 237, 245 (9th Cir.1979), cert. denied 445 U.S. 934, 100 S.Ct. 1327, 633 L.Ed.2d 760 (1980); United States v. Hannah, 584 F.2d 27, 28-30 (3rd Cir.1978) (cases holding that 21 U.S.C. Sec. 843(b) convictions must be reversed when the conviction on the underlying conspiracy count is reversed).

Appellant also contends that her privately retained counsel was guilty of conflict of interest in representing both her son and herself, and that she was therefore denied effective assistance of counsel. The record demonstrates that the potential conflict was discussed in detail in open court. The district judge carefully informed appellant of her right to independent representation. He advised her that, if she insisted on retaining her attorney despite the dual-representation, it might affect the attorney's ability to cross-examine witnesses in appellant's behalf, and that the attorney would be prohibited from disclosing certain confidences. Despite repeated warnings and opportunities to obtain other counsel, Powell states that she understood her rights and wished to be represented by her attorney.

Thee is no doubt but that in a situation such as this, it would have been far preferable to have each defendant represented by separate counsel. But in the face of appellant's insistence on retaining her attorney, we must conclude that she waived the rights which she now claims were denied her. Perhaps more important, she has not sufficiently demonstrated prejudice. Her claims of prejudice are not persuasive and, in view of our reversal of the convictions on Counts 3, 4, and 5, she can claim no prejudice at all. Her conviction of Count 15 could not be affected by the claimed conflict of interest. We summarily reject appellant's claim that she did not otherwise receive the effective assistance of counsel. See, e.g., United States v. Altamirano, 633 F.2d 147, 150-53 (9th Cir.1980), cert. denied, 454 U.S. .839, 102 S.Ct. 145, 70 L.Ed.2d 120 (1981); Cooper v. Fitzharris, 586 F.2d 1325, 1327 (9th Cir.1978) (en banc), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979).

We turn then to Count 15, the charge of...