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United States v. Powell

United States Court of Appeals, Sixth Circuit

February 6, 2017

United States of America, Plaintiff-Appellee,
v.
Carlos Ellis Powell (14-2506); Eric Jerome Powell (14-2507); Earnest Lee Proge (15-1724), Defendants-Appellants.

          Argued: August 3, 2016

         Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:12-cr-20052-Stephen J. Murphy III, District Judge.

         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.

          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 request to proceed pro se was heard and denied during the continued conference held on April 10. The government sought reconsideration of that ruling, asking that Powell be allowed to represent himself with the aid of standby counsel. Although the motion was denied, it resulted in an order that clarified the basis for the denial of Powell's request to represent himself. Earnest Proge's attorneys filed the anticipated motion to withdraw on April 3, representing that there had been a complete breakdown in the attorney-client relationship. The district court heard from Proge and his counsel during a hearing on April 16, and denied the motion in an order entered April 22. On reconsideration, the district court allowed only one of Proge's attorneys to withdraw and indicated that the other attorney could be appointed to represent him at trial. Trial proceeded as scheduled on April 29, 2014.

         At the conclusion of the ten-day trial, but while the jury was still deliberating, Carlos Powell, Eric Powell, and Earnest Proge violated their bond and fled the jurisdiction. The jury returned verdicts finding all three defendants guilty of conspiracy to possess with intent to distribute and to distribute heroin, cocaine, and marijuana (Count 1). The defendants were also convicted of possession with intent to distribute the following: one kilogram or more of heroin on June 23 (Eric Powell and Earnest Proge) (Count 2); five kilograms or more of cocaine on October 22 (Carlos and Eric Powell) (Count 3); and one kilogram or more of heroin on November 17 (Carlos Powell) (Count 4). Carlos Powell and Earnest Proge were convicted of possession of a firearm in furtherance of a drug-trafficking offense and being a felon in possession of a firearm, respectively (Counts 5 and 8). Finally, all three defendants were found guilty of conspiracy to launder the proceeds of the drug trafficking (Count 10). Other substantive money-laundering charges were dismissed before trial, and the jury acquitted Earnest Proge of the charge of possession with intent to distribute cocaine on October 22 (Count 3).[2]

         The United States Marshal Service apprehended Eric Powell in Atlanta, Georgia, and arrested Carlos Powell and Earnest Proge within a few weeks of each other in St. Louis, Missouri. The defendants were returned to Michigan for sentencing. Carlos and Eric Powell received concurrent life sentences on the drug and money-laundering offenses, and Carlos Powell also received a consecutive five-year term of for the firearm conviction. Earnest Proge was sentenced to concurrent terms of imprisonment of 120, 240, and 360 months, but, as the government concedes, the judgment incorrectly stated that he had been found guilty on Count 3. These consolidated appeals followed.[3]

         II. Motions to Suppress Evidence

         On appeal from the denial of a motion to suppress, "we review the district court's findings of fact for clear error and its conclusions of law de novo." United States v. Hurst, 228 F.3d 751, 756 (6th Cir. 2000). In doing so, the evidence must be considered "in the light most likely to support the district court's decision." Id. (quoting United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999)). For the reasons discussed, we affirm the district court's denial of the motions to suppress evidence.

         A. Standing

         The Fourth Amendment's exclusionary remedy "encompasses both the 'primary evidence obtained as a direct result of an illegal search or seizure' and, relevant here, 'evidence later discovered and found to be derivative of an illegality, ' the so-called 'fruit of the poisonous tree.'" Utah v. Streiff, 136 S.Ct. 2056, 2061 (2016) (quoting Segura v. United States, 468 U.S. 796, 804 (1984)); see also Wong Sun v. United States, 371 U.S. 471, 488 (1963). However, because Fourth Amendment rights are personal, suppression of evidence as "the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence." United States v. Padilla, 508 U.S. 77, 81-82 (1993) (per curiam) ("Co-conspirators and codefendants have been accorded no special standing.").

         The district court found that Carlos and Eric Powell had "standing" to assert the alleged Fourth Amendment violations by virtue of their co-ownership of the relevant phones, vehicles, and property, but that Earnest Proge did not. We assume, since the government does not argue otherwise, that the Powells may pursue the Fourth Amendment claims they press on appeal. Proge contends that he had standing to challenge his arrest on September 17 as the product of "evidence unlawfully gathered earlier that day" through use of the GPS device on Eric Powell's vehicle and video surveillance outside the Sherwood Avenue warehouse. Because we find that the district court did not err in denying the Powells' motions to suppress evidence-including evidence derived from the GPS tracking and the pole cameras-we need not decide whether Proge met his burden to establish standing to challenge his seizure as fruit of the poisonous tree. See Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978); United States v. Smith, 263 F.3d 571, 582 (6th Cir. 2001).

         B. Cell-Phone Location Information

         The government obtained five judicially authorized warrants between March 11 and October 5, 2010, which permitted the government to receive "real time" cell-phone location information-including cell-site location information (CSLI) and GPS data-for six cell-phone numbers for periods of 30 or 45 days each. Each warrant required the cellular service provider to initiate a signal to the target cell phone and to report the cell phone's location to the DEA when requested. The first of the warrants sought real-time location information for a known cellphone number subscribed to by Carlos Powell. The district court found that the affidavit in support of that warrant included "informant testimony, confirmed by independently verified evidence, that Carlos Powell was a major player in a drug trafficking ring in Detroit." United States v. Powell, 943 F.Supp.2d 759, 782 (E.D. Mich. 2013). The affidavit stated that obtaining Carlos Powell's cell-phone location information would assist in finding him and identifying his associates, the locations used to store narcotics, and the assets derived from the narcotic sales. Id.

         Importantly, the government does not ask us to decide whether the long-term tracking of cell phone location information in this case should be deemed a search for purposes of the Fourth Amendment. The possibility that it could constitute a search was suggested in dicta in United States v. Skinner, 690 F.3d 772, 780 (6th Cir. 2012) (holding short-term cell-phone tracking was not a search), cert. denied, 133 S.Ct. 2851 (2013), and was not resolved in United States v. Carpenter, 819 F.3d 880, 886-90 (6th Cir. 2016) (holding that request for historical CSLI information was not a search), petition for cert. filed, No. 16-402 (U.S. Sept. 26, 2016). Indeed, because the government took the precaution of securing warrants for cell-phone location information in this case, it is not necessary to decide that issue as long as there was either probable cause or the Leon good-faith exception applied.[4]

         Probable cause supports a search warrant when the affidavit demonstrates "a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). The district court detailed the information in Agent Donovan's March 11 affidavit and concluded that it provided a substantial basis for the magistrate judge to find probable cause to issue the warrant "under traditional probable cause analysis." Powell, 943 F.Supp.2d at 782. Also, despite finding that the affidavit would not satisfy its own newly articulated probable-cause standard, the district court denied defendants' motions to suppress because the DEA agents had relied on the judicially issued warrants in good faith. Id. at 775-84; see also id. at 780 (acknowledging that "no authoritative court has stated plainly that [the district court's proposed] showing is required"). As such, the first hurdle defendants face on appeal is the good-faith exception.

         Because the purpose of the exclusionary rule is to deter Fourth Amendment violations, Herring v. United States, 555 U.S. 135, 140-41 (2009), courts will not suppress evidence "obtained in objectively reasonable reliance on a subsequently invalidated search warrant, " United States v. Leon, 468 U.S. 897, 922 (1984). Asserting a Franks claim, defendants argued that the Leon good-faith exception should not apply because Agent Donovan intentionally or recklessly omitted material information from the affidavit he submitted in support of the March 11 warrant. See id. at 923 (citing Franks v. Delaware, 438 U.S. 154 (1978)). Defendants point specifically to the following statements from later affidavits submitted in support of other warrants: namely, that it is "common for individuals involved in narcotics trafficking to obtain cellular telephones in nominee or fictitious names to avoid detection by law enforcement" and to "very often maintain one cellular telephone to communicate with their close associates and/or drug suppliers and . . . a second, third, or even a fourth cellular telephone to communicate with customers, and/or outside associates." Defendants contend that these statements would have lessened the likelihood that Carlos Powell could be expected to use a cell phone subscribed to in his own name to conduct drug-related activities.

         However, as the government aptly responds, this allegedly omitted information would not have been material to the magistrate judge's probable-cause determination. See United States v. Rose, 714 F.3d 362, 370 (6th Cir. 2013) (citing Franks, 438 U.S. at 171-72). The March 11 warrant was sought in order to determine Carlos Powell's location by tracking his personal cell phone. Whether Carlos had other cell phones (which he apparently did), or used those other cell phones to conduct drug-related business (which he apparently did), would not undermine the finding of probable cause to believe that Carlos Powell was involved in an ongoing drug-trafficking conspiracy and that following him would yield evidence of that conspiracy. Having failed to make "a substantial preliminary showing" that would have entitled defendants to a Franks hearing, this claim cannot overcome the good-faith exception. Franks, 438 U.S. at 155.

         Defendants also argue that the March 11 warrant was "overbroad" because it was based on probable cause to believe that the cell-phone location information would lead to evidence of a crime-not that the location information itself would be evidence of a crime. But, the warrant issued on a finding of probable cause to believe that evidence of drug trafficking would be found by tracking the location of Carlos Powell's cell phone. The district court rejected defendants' argument that the affidavit was so lacking in indicia of probable cause as to render reliance on it objectively unreasonable. Powell, 943 F.Supp.2d at 783-84 (citing Leon, 468 U.S. at 914). Defendants' assertion that the warrant was "facially deficient" is equally unavailing. See Leon, 468 U.S. at 923 ("[A] warrant may be so facially deficient-i.e., in failing to particularize the place to be searched or the things to be seized-that the executing officers cannot reasonably presume it to be valid."). The district court did not err in finding that evidence derived from the March 11 warrant was admissible at trial and did not taint the probable cause underlying the second and subsequent cell-phone location warrants.

         C. Cell-Phone ...


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