United States v. Powell

• Citation: 847 F.3d 760
• Decision Date: 06 February 2017
• Docket Number: Nos. 14-2506/2507/15-1724,s. 14-2506/2507/15-1724
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Carlos Ellis POWELL (14–2506); Eric Jerome Powell (14–2507); Earnest Lee Proge (15–1724), Defendants–Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

847 F.3d 760

UNITED STATES of America, Plaintiff–Appellee,

v.Carlos Ellis POWELL (14–2506); Eric Jerome Powell (14–2507); Earnest Lee Proge (15–1724), Defendants–Appellants.

Nos. 14-2506/2507/15-1724

United States Court of Appeals, Sixth Circuit.

Argued: August 3, 2016

Decided and Filed: February 6, 2017

Rehearing En Banc Denied March 10, 2017

ARGUED: N.C. Deday LaRene, LARENE & KRIGER, P.L.C., Detroit, Michigan, for Appellant in 14–2506. Domnick J. Sorise, Detroit, Michigan, for Appellant in 14–2507. Kevin M. Carlson, UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor, Michigan, for Appellant in 15–1724. Andrew Goetz, UNITED STATES ATTORNEY' S OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: N.C. Deday LaRene, LARENE & KRIGER, P.L.C., Detroit, Michigan, for Appellant in 14–2506. Domnick J. Sorise, Detroit, Michigan, for Appellant in 14–2507. Kevin M. Carlson, Melissa M. Salinas, UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor, Michigan, for Appellant in 15–1724. Andrew Goetz, UNITED STATES ATTORNEY' S OFFICE, Detroit, Michigan, for Appellee. Carlos Ellis Powell, White Deer, Pennsylvania, pro se.

Before: GUY, BOGGS, and MOORE, Circuit Judges

GUY, J., delivered the opinion of the court in which BOGGS, J, joined, and MOORE, J., joined in part. MOORE, J. (pp. 782–88), delivered a separate opinion concurring in part and dissenting in part.

OPINION

RALPH B. GUY, JR., Circuit Judge.

Defendants Carlos Powell, Eric Powell, and Earnest Proge, Jr., were tried together and convicted of offenses arising out of a large-scale narcotics distribution operation in Detroit, Michigan.¹ First, all three defendants challenge the district court's orders denying their motions to suppress evidence derived from: (1) the collection of cellular-phone identification and location information; (2) the use of a GPS tracking device; and (3) the monitoring of video cameras installed on nearby utility poles. Second, raising Sixth Amendment claims, Carlos Powell argues that he was denied his right to represent himself, and Earnest Proge contends that he was denied counsel of his choice. Third, Earnest Proge raises separate claims of error, including challenges to the sufficiency of the evidence, the jury instructions, and an error in the judgment entered against him. Finally, Carlos Powell has raised additional claims in a pro se brief. For the reasons that follow, we affirm the denial of the defendants' motions to suppress; affirm the judgments entered against Carlos and Eric Powell, respectively; and vacate the judgment and remand for further proceedings consistent with this opinion with respect to Earnest Proge only.

I.

Overwhelming evidence established that Carlos Powell ran a lucrative narcotics distribution conspiracy and a related money-laundering conspiracy with his brother Eric Powell in Detroit, Michigan. The Powells' drug operation largely evaded detection until a DEA investigation in Arizona snared a middleman named Ted Morawa. Morawa had received large quantities of marijuana, cocaine, and heroin from Mexico and arranged or facilitated the transportation of drugs and cash to and from customers in the Midwest. Morawa decided to cooperate with the government in early 2010, and the information he provided included identifying Carlos Powell, a/k/a "50," as his "number one" customer. At trial, Morawa described meeting with Carlos Powell a number of times and arranging for large quantities of marijuana, cocaine, and heroin to be transported to him beginning in 2006. The investigation that followed led to the charges in this case.

Starting in March 2010, DEA agents in Detroit gathered evidence by: obtaining warrants for prospective real-time cell-phone location data; using a cell-site simulator to identify unknown cell phones used by Carlos Powell, Eric Powell, and Juan Valle; placing a GPS tracking device on Eric Powell's Chevy Silverado pickup truck; and monitoring three video cameras installed on public utility poles. The evidence at trial included recordings from pole cameras installed near three "stash" locations: a house on Conley Street in Detroit, a house on Stricker Avenue in Eastpointe, and a warehouse on Sherwood Avenue in Center Line, Michigan.

The DEA's surveillance—electronic and in-person—led agents to request that the Michigan State Police make four traffic stops that resulted in the seizure of drugs and/or cash on June 23, June 28, September 17, and October 22, 2010. Defendants did not challenge the validity of the stops themselves, but argued that the evidence obtained as a result of those stops should be suppressed as fruit of earlier illegal searches or seizures.

On June 23, ten kilograms of heroin was seized from Benny Whigham's Volkswagen Passat when he was stopped as he returned from Chicago traveling in tandem with Eric Powell and Earnest Proge in Eric's Silverado. The three men had been under surveillance in Chicago, and both vehicles were followed back into Michigan before Whigham was stopped. On June 28, Juan Valle met Carlos Powell at the Conley Street location and Valle was seen putting something in his Nissan Murano before driving away. Valle was followed and stopped, and $259,000 in cash was found in a hidden compartment of the Nissan.

On September 17, $2.2 million in cash was seized from a Ford Flex driven by Earnest Proge. Earlier that day, Carlos and Eric Powell were observed at the Stricker Avenue location. After Carlos left, Eric came out wearing latex gloves and put three suitcases into a Ford Flex. Eric Powell drove the Flex to the warehouse on Sherwood Avenue, where he was joined by Proge and another man. Proge later drove away in the Flex, while Eric Powell and the other man followed in the Silverado. When the police stopped Proge, he acted very nervous, said he did not have his license, and drove away—narrowly missing an officer and leading police on a high-speed chase—before he was finally stopped. The Silverado exited the highway after Proge was first stopped, and then sped away to follow the chase when Proge fled from the officers. Proge told the officers that there was a lot of cash in the car, but that he was only the driver. Officers seized three locked suitcases from the Flex that contained $2.2 million in cash, a drug ledger, and a newspaper article about a drug arrest. Carlos Powell's fingerprints were on the article, and Eric Powell's print was on the packaging.

On October 22, suitcases containing $2 million in cash, a ledger, and 12 kilograms of cocaine were seized from a Toyota driven by Margarita Lopez de Vallejo. She testified that she delivered drugs and transported money for a drug supplier named Paul Rodriguez. Several days before the stop, she delivered drugs to Eric Powell and then waited at a hotel in Ann Arbor. On the day of the stop, Eric Powell was followed from the Stricker Avenue location to the hotel, where Proge joined him and helped transfer the suitcases into a waiting Toyota. When de Vallejo left the hotel in the Toyota, she was followed and stopped by the Michigan State Police.

Finally, nine search warrants were executed on November 17, 2010. From the Stricker Avenue location alone, the DEA seized five kilograms of heroin, $5 million in cash, several loaded firearms, seven cell phones, money counters, drug ledgers, and digital scales. Searches of three residences—two belonging to Carlos Powell and one belonging to Eric Powell—resulted in the seizure of firearms, luxury cars, expensive jewelry, and a total of more than $3 million in cash. Also, two firearms were seized from Earnest Proge's residence. Again, defendants did not challenge the validity of those searches, but argued that the warrants were obtained with evidence derived from earlier unlawful searches or seizures.

The initial indictment was returned in January 2012, and motions to suppress evidence were filed in April and November 2012. In January 2013, fourteen defendants—including Carlos Powell, Eric Powell, and Earnest Proge, Jr.—were charged in a 29–count superseding indictment with various drug-trafficking, money-laundering, and firearm offenses. After extensive briefing and several evidentiary hearings, the district court denied defendants' motions to suppress for the reasons stated in the orders it entered on January 4, May 3, and July 23, 2013. Trial was scheduled to commence in February 2014, but a stipulated 60–day extension of the pretrial and trial dates was entered into in January 2014.

In February 2014, pro se documents were filed on behalf of Carlos Powell and Eric Powell asserting that they were "trust property" of the Moorish Science Temple of America and claiming to revoke their citizenship and terminate the district court's power. Those filings were stricken by the district court because they had "no legal authority, were not filed by Defendants' attorneys, and [did] not bear on this case." Referencing similar prior filings in a related matter, the district court cautioned that "any further such documents will be dealt with more severely."

During the final pretrial conference held on March 26, 2014, the district court severed the trial of three of the defendants and emphasized that trial of the remaining defendants would commence as scheduled on April 29, 2014. It was during this conference that Carlos Powell's retained counsel gave the first indication that his client wanted to represent himself. The district court offered to conduct the required inquiry then, or whenever counsel would like, and agreed to defense counsel's suggestion that the inquiry be made after he had a chance to talk with his client. Then Earnest Proge's retained counsel asked to make a record of her client's decision to reject the government's plea offer and stated that her client wanted new counsel. The district court questioned Proge about his decision to reject the plea offer, extended the time for Proge (or any of the defendants) to enter a guilty plea, and invited Proge's attorneys to file a motion to withdraw as counsel.

Carlos Powell's...