Petition for Writ of Certiorari — Powell v. United States

Supreme Court, U.S,

92-1146 FILED

FEB 3 ae

UFFICE OF THE CLERK

IN THE

Supreme Court of the United States

October Term, 1991

JAMES GARLAND POWELL,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ROBERT G. FIERER

Attorney for Petitioner

Ga. State Bar No. 259700

152 Nassau Street, N.W.

Atlanta, Georgia 30303

404/688-5500

QUESTIONS PRESENTED FOR REVIEW

I. Whether the Court erred in improperly instruct-

ing the jury about Petitioner’s claim of right defense and

the mens rea element of the Hobbs Act violation?

II. Whether Petitioner was effectively denied due

process of law and deprived of his Sixth Amendment

right to confrontation as the trial court repeatedly stripped

Petitioner of the opportunity to fully cross-examine an

unindicted co-conspirator?

III. Whether the trial court curtailed the defense

from introducing competing theories of the case and

thereby infringed on Petitioner's Fifth Amendment right

against self-incrimination?

CERTIFICATE OF INTERESTED PERSONS

Trial Judge:

The Honorable Orinda D. Evans

United States District Court for the Northern

District of Georgia

Assistant United States Attorney:

William McKinnon

Appellant and Counsel:

James Garland Powell, represented by Robert G.

Fierer, Esquire, on appeal.

Steven Ludwick, Esquire, and Larry J. White,

Esquire, trial counsel.

il

TABLE OF CONTENTS

Page

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iii

TABLE OF AUTHORITIES

CASES: Page

Beaudine v. United States, 369 F.2d 417

(Sth Cir. 1966)....... Seb Set REE OO NO RO 22

Dorsey v. Warden. Southern Michigan and State Prison,

SF Fe Pe OE Ge BF FD saciscesinsisccenanecciseenen 23

United States v. Aguon, 851 F.2d 1158

Ee A IE cccisivsihie nixcclatelectisceshentensssinesiincina 16

United States v. Arambaisch, 597 F.2d 607

CF Be ihineeitccehintiwteliepnitacticiintnesiiaevinnsess 16

United States v. Barkowitz, 662 F.2d 1127

ee et MN iicsacesicsicisbkedishnindsinlbiecsbandanenesieenen 21

United States v. Barrentine, 591 F.2d 1969

United States v. Clemente, 640 F.2d 1069

Se: Se Uh conniininucaseeavesdecaananetnineninaisohaanonans 15

United States v. Enmons, 410 U.S. 386 (1973)....12, 19

United States v. Greenbera, 423 F.2d 1106

a Pcie aiiicildiidcaiiccdinieinecdebanskonssininnnians 21

United States v. Haimowitz, 706 F.2d 1549

Ee eae Fe icicntncsiainirenncrnineniencinaneninnes 21

iV

United States v. Katter, 840 F.2d 118

Ce 15

United States v. Sturm, 870 F.2d 769

CR BIE iicneccenstcocinses 13, 14, 15, 16, 17, 18

United States v. Summers, 598 F.2d 450

Ra a le 24

United States v. Tolliver, 665 F.2d 1005

ROU ihc tosdccecrnekc tonccsnsccdsctec 21

OPINION BELOW

Petitioner was convicted after a jury trial in United

States District Court for the Northern District of Georgia,

Atlanta Division, on May 25, 1990, and sentenced on

August 16, 1990. Petitioner appealed his conviction to -

the Eleventh Circuit Court of Appeals which affirmed on

November 5, 1991, in a per curiam opinion.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to

Title 28, U.S.C. Section 1254. This is a direct appeal of a

criminal conviction and sentence in the United States

District Court for the Northern District of Georgia, At-

lanta Division, affirmed in the Eleventh Circuit Court of

Appeals on November 5, 1991.

STATUTORY PROVISIONS INVOLVED

18 U.S.C. Section 1951.

STATEMENT OF THE FACTS

James Garland Powell, Petitioner, was an estab-

lished, well- respected, semi-retired businessman who

continued to work as a consultant to his family’s business

until shortly before his arrest. On November 20, 1989, a

federal grand jury in the Northern District of Georgia

returned an indictment charging Petitioner, along with

William H. Armistead and an unindicted co-conspirator,

with conspiracy to extort $35,000.00 from Jim Franklin,

in violation of Title 18, United States Code, Section 1951,

the Hobbs Act.

In mid-1989, Jim Franklin and Michael Britt, com-

mercial real estate brokers, entered into preliminary ne-

gotiations relating to a corner piece of property in Dekalb

County, Georgia. Specifically, Franklin and Britt needed

to obtain commercial zoning for a corner piece of prop-

erty which was then zoned residential. (R2-80, 81) Franklin

had attempted to get the property re-zoned through sub-

mitting an application to the City of Clarkston planning

commission. (R2-83) However, Franklin had run into

obstacles as the commission was opposed to such a

change in zoning. (R2-83, 90) At this point, Franklin

retained the services of an attorney, Terri Candler, who

resubmitted the application. (R2-83, 91) Candler

resubmitted the application with “legal information”

(R2-91) and gave a presentation to accompany the appli-

cation. (R2-92) Despite this effort, Franklin eventually

learned that the commission recommended disapproval

of the request to re-zone this corner lot. (R2-92)

Myron Baynes, another real estate broker, then

suggested to Franklin that he contact Petitioner for assis-

tance in his re-zoning matter. (R2-94) Franklin tele-

phoned Petitioner (R2-94) and made an appointment to

meet him the following day. (R2-95) At this meeting

Franklin explained to Petitioner the problems he was

experiencing with the re-zoning matter. (R2-97) The two

5

also agreed on a fee of $35,000 for Petitioner’s assistance

in obtaining the re-zoning. (R2-98) Ultimately, Franklin

and Petitioner entered into a contractual agreement which

set forth the fee of $35,000 to secure re-zoning.

Although there were lengthy discussions about the

payment schedule, it was finally agreed that Franklin

would deliver Petitioner a post-dated check. (R2-129) In

reality, this check was written by the District Attorney’s

office of Dekalb County, Georgia, on an account which

was under their control. (R2-129) The money was to be

held in escrow by Attorney James Howard. The contract

further provided that in the event the property was not re-

zoned, Franklin would receive the fee back, less $500.00,

presumably for administrative expenses. (R2-101) Peti-

tioner assured Franklin that he would not do anything

illegal or unethical. (R2-99) Franklin proceeded to in-

form his attorney about his meeting with Petitioner. (R2-

100) At this point Franklin gave his attorney permission

6

to contact the Dekalb County District Attorney’s Office.

(R2-100) Franklin agreed to cooperate with the authori-

ties, and allowed his phone to be tapped. (R2-105) Sub-

sequent conversations between Petitioner and Franklin

were recorded. (R2-120)

Contemporaneously, Petitioner met with Steven

Pavuk, a business associate and professional friend who

served as the Clarkston City Attorney. Petitioner ex-

plained Franklin’s situation to Pavuk and Pavuk, who was

somewhat familiar with the case, added what information

he knew about the matter. (R8-1349) What Pavuk knew

was particularly relevant to Petitioner’s participation in

the re-zoning matter as it related to Franklin and Britt’s

attorney, Terri Candler. Pavuk informed Petitioner that

Candler had threatened the Planning Commission with

litigation, and that in Pavuk’s estimation, such a suit

would likely be costly and probably prevail on the merits.

(R5-694-697) This indicated to Petitioner that the Com-

7

————

mission would seriously review Franklin and Britt’s

application for re-zoning.

Independently, that is without Petitioner’s knowl-

edge or assistance, Pavuk contacted Clarkston City Coun-

cilman William Armistead, and allegedly offered him a

sum of money if he would vote in favor of re-zoning

Franklin’s property. (R3-375, 380) Pavuk allegedly

related to Armistead that he could make money off of this

transaction. (R3-376) Pavuk himself, also intended to

make a great deal of money on the transaction. (R5-606)

As the District Attorney began investigating this

matter, it came across strong evidence of Pavuk’s corrup-

tion. The District Attorney’s office then approached Pavuk

and gained his cooperation in the investigation. Pavuk,

like Franklin, began recording all conversations which

took place between him and Petitioner, and him and

Armistead. (R5-693 ) The conversations between Pavuk

and Petitioner are confusing at best, because the two

8

discuss several of their ongoing business transactions

relating to outdoor billboards.

The re-zoning application was unanimously ap-

proved on July 11, 1989. (R2-128; R3-382) Armistead

indeed voted for the re-zoning. Thereafter, Petitioner

sought full payment of the $35, 000 from Franklin — the

amount specified pursuant to their contract. Franklin

informed Petitioner that he did not have the money.

Petitioner, angry that his contract was not honored, threat-

ened Franklin with litigation and denial of issuance of

building permits. Although Powell did not have the

power to influence any decisions relating to the issuance

or denial of building permits, he did indeed sue Franklin

for the $35,000.00. (R2-142, 143) For his cooperation,

Pavuk entered into a plea agreement which called for him

to plead guilty to state, not federal charges. (R4-434-444)

STATEMENT OF THE CASE

On November 20, 1989, a federal grand jury re-

turned an indictment charging James Garland Powell,

Petitioner, William H. Armistead, and unindicted co-

conspirator Steven M. Pavuk with conspiracy to extort

money from one Jim Franklin in violation of 18 U.S.C.

Section 1951. A joint trial of Petitioner and Armistead

was held from May 15-25, 1990, before the Honorable

Orinda Evans in the Northern District of Georgia, Atlanta

Division.

At trial, the government relied primarily on the

testimonies of co-conspirator/informant Steven Pavuk

and Jim Franklin, tape recorded conversations between

Franklin and Petitioner, and tapes made by Pavuk of his

conversations with Petitioner and Armistead. Petitioner

testified on his own behalf as did Armistead. Addition-

ally, both defendants put on a substantial number of

character witnesses. The jury returned a verdict of guilty

10

as to both defendants. (R10-1751) Both Petitioner and

Armistead were sentenced on August 16, 1990. Petitioner’s

Motion for Bond pending appeal was denied by the trial

court on September 25, 1990 (R-61, 63) and the Court of

Appeals for the Eleventh Circuit on October 30, 1990. (R-

70)

Petitioner’s conviction was affirmed by the United

States Court of Appeals for the Eleventh Circuit on

November 5, 1991, in a per curiam opinion. Petitioner is

presently incarcerated in the Atlanta Prison Camp and has

been since his voluntary surrender on October 19, 1990.

1]

Throughout Petitioner’s trial, and in fact during the

investigatory and pretrial phases of this case, Petitioner

adamantly asserted a claim of right defense to the money

owed to him by Franklin and Britt. The claim of right

defense originated in United States v. Enmons, 410 U.S.

396 (1973). In Enmons, the defendants were charged with

attempting to obtain higher wages and other benefits for

striking utilities employees through the wrongful use of

actual force and violence. The strikers allegedly em-

ployed violence and other coercive tactics to exact wage

increases from their employer. The issue before the

Supreme Court was whether the term “wrongful” in the

Statute applied to the means or the ends sought by the

alleged extortioner. Id. at 399. The Court definitively

12

stated that “wrongful has meaning in the Act only if it

limits the statute’s coverage to those instances where the

obtaining of the property would itself be ‘wrongful’

because the alleged extortionist has no lawful claim to

that property.” Id. at 400. This reasoning created the claim

of right defense to charges of extortion under the Hobbs

Act. Although this case applied to the labor context,

broader applications have been addressed. See e.g., United

States v. Sturm, 870 F.2d 769 (ist Cir. 1989).

In Sturm, the defendant was charged with attempted

extortion in violation of the Hobbs Act, 18 U.S.C. Section

1951. Defendant Sturm had obtained a substantial loan

from a bank to purchase an aircraft and he secured the

loan by granting the bank a security interest in the aircraft

and other related collateral, including the plane’s log-

books. The logbooks of the plane’s repairs and mainte-

nance were of value to the lender, as a plane accompanied

by logbooks is worth substantially more than one without

13

——=_awlIEeE

the records. Id. at 770. When the bank repossessed the

aircraft after defendant defaulted on the loan, the log-

books were not likewise obtained. However, after an

unsuccessful attempt to sell the plane at an appropriate

price, the bank later asked defendant for production of the

logbooks, to which defendant repeatedly replied that he

could get them “for a price.” Id.

Defendant raised the claim of right defense, assert-

ing that he had a right to possession of the log books. Id.

at 772. Although the court disagreed with defendant on

this ground, it expounded on the claim of right defense in

the context of extortion under the Hobbs Act, 18 U.S.C.

Section 1951. The court distinguished extortion cases

based on the use of force and violence from those based

on the use of economic fear. In the latter, “it is self-evident

that a defendant cannot be found guilty of wrongfully

obtaining property through the use of a legitimate eco-

nomic threat if he has a claim of right to the property.” Id.

14

OO

at 773. Arriving at its holding, the court concluded that for

purposes of the Hobbs Acct, the use of legitimate threats to

obtain property is wrongful only if the defendant has no

claim of right to that property. In the extortion context, a

violation of the Hobbs Act requires the use of economic

threat to procure property. United States v. Kattar, 840

F.2d 118 (ist Cir. 1988). Such a threat is not per se illegal,

as a legal right to funds or property at issue may justify the

threat of pecuniary harm. United States v. Clemente, 640

F.2d 1069 (2nd Cir. 1981). A straightforward example of

a lawful economic threat is where one party threatens

litigation in order to persuade another party to honor a

contract which the first party believes has been breached.

The first party’s subjective belief is critical to this analy-

sis. Take the hypothetical scenario set forth in Sturm:

“Two parties, A and B, enter into a contract. A

sincerely believes that B has breached the contract,

and threatens litigation unless B abides by A’s

interpretation of the contract. B refuses to do so,

and the judgment in the ensuing lawsuit indicates

15

that B had not breached the contract. May Athen be

convicted of attempted extortion based on the threat

of litigation?”

870 F.2d at 774.

In this scenario, the Sturm court concluded that A

may not, as a matter of law, be convicted. Even thoughA

had no objective right to the contractual entitlement

sought, the threat does not amount to attempted extortion

because A subjectively thought he had a right to the

contractual entitlement. United States v. Aguon, 851 F.2d

1158 (9th Cir. 1988)(en banc); United States v.

Arambaisch, 597 F.2d 607 (7th Cir. 1979). It would be a

miscarriage of justice to convict A of extortion when he

legitimately lacked the intent by virtue of a claim of right

to the goods or property sought.

The Hobbs Act also requires proof of intent to

commit the offense. The requisite mens rea must be

explained to the jury in an adequate jury instruction.

Aguon at 1168.

16

A fortiori, criminal intent must be submitted to the

jury in a case charging extortion under the Hobbs

Act... The corrupt intention must be proved to the

crime. The court’s failure to give an instruction on

a vital element of the crime [is] plain error.

Sturm requires that the government prove beyond

a reasonable doubt that Petitioner did not have a claim of

right to the property in question. Sturm at 774. Addition-

ally, the government must prove, at_a minimum, that

defendant knew he was not legally entitled to the prop-

erty. Id. Thus, the government must prove, beyond a

reasonable doubt that a defendant had the intent to obtain

goods or property to which he knew he was not legally

entitled.

Petitioner embraced the claim of right defense by

arguing that pursuant to a legal agreement he was em-

ployed to perform legitimate services for the developers

and consequently was owed the fee derived therefrom.

(R2-43) The trial court, however, delivered a fatally

17

defective jury instruction regarding the state of the law on

the claim of right defense. Petitioner’s counsel objected

to the error, but no curative or ameliorative measures

were taken. The court had defined “wrongful” in the

following way:

The term wrongful means to obtain money unfairly

and unjustly by one having no lawful claim to it,

and who knows in his own mind that he does not

have a lawful claim to it.

(R10-1720)

Petitioner’s counsel argued to the court in opposition:

...Also, when you defined the word wrongful, you

used the word unfairly, but it is not against the law

to do something that is unfair,and I think the jury

can find what Mr. Powell did in the business world

may have been unfair, perhaps unethical, but it

shouldn’t be unlawful.

(R10-1749-1750)

In the context of Sturm, the propriety of the above

jury instruction wanes. Moreover, the error is compounded

by the fact that, as a matter of law, the government did not

18

Ee

prove beyond a reasonable doubt that Petitioner did not

have a claim of right, that he intended to illegally obtain

those goods or property nonetheless. Sturm, at 774.

Petitioner had entered into a contract with Franklin,

which he felt was legally binding. Thus, he subjectively

held areasonable belief that if the rezoning passed, which

it did unanimously, that his consulting fee would be

earned. When Franklin refused to pay Petitioner, Peti-

tioner, a business man, attempted to use coercive tech-

niques. These techniques fall squarely within those exist-

ing in Enmons when a claim of right is asserted. Further,

Sturm insulates Petitioner as he lacked any subjective

intent to obtain anything to which he was not legally

entitled. (R10-1749-1750)

The trial court’s instruction was such that the jury

could and may have concluded that Petitioner was guilty

of attempted extortion even if it found credible his claim

that he sincerely believed he was legally entitled to a fee

19

I

for his services. This conclusion would be clearly errone-

ous, because the mens rea element is lacking. Thus, the

government was relieved of meeting its burden of proof

of the subjective intent of the accused. The trial court’s

instruction was clearly erroneous and had a prejudicial

impact on the jury’s consideration of Petitioner. This

error requires reversal of Petitioner’s conviction.

II]. PETITIONER WAS EFFECTIVELY DENIED

DUE PR F LAW AND DEPRIVED

OF HIS SIXTH AMENDMENT RIGHT TO

CONFRO ON AS THE TRIAL COURT

REPEATEDLY IPPED PETITIONER OF

THE OPPORTUNITY TO FULLY CROSS-

EXAMINE AN UNINDICTED CO-CON-

SPIRATOR.

It is principally through cross-examination that a

defendant exercises his right to confront witnesses called

to testify against him. The right to cross-examination

under the Sixth Amendment is a fundamental right and

may not be improperly restricted. U.S. Const. amend VI.

Any unreasonable limitation placed on this constitutional

20

guarantee requires reversal of the underlying conviction.

United States v. Barkowitz, 662 F.2d 1127 (Sth Cir.

1981); United States v. Haimowitz, 706 F.2d 1549 (11th

Cir. 1983). This right is especially important with respect

to accomplices or witnesses cooperating with the govern-

ment who provide an essential link in the prosecution’s

case. United States v. Greenberg, 423 F.2d 1106 (Sth Cir.

1970); United States v. Barrentine, 591 F.2d 1069 (Sth

Cir. 1979).

While the scope of cross-examination with respect

to an appropriate subject of inquiry is within the discre-

tion of the court, a court abuses its discretion when it

excludes matters vital and proper to the defense of the

accused. The court’s discretion includes confining the

scope and extent of cross-examination to relevant and

material matters. However, there is a “sphere which a trial

judge may not impinge”. United States v. Tolliver, 665 F.

2nd 1005, 1008 (11th Cir. 1982).

21

In Beaudine v. United States, 368 F.2d 417 (Sth Cir.

1966), the old Fifth Circuit reversed defendant’s convic-

tion because the trial court had improperly sustained

objections to cross-examination. Defendant had been

charged with taking kickbacks from a contractor in vio-

lation of 18 U.S.C. Section 1006. The primary witness

who testified for the government had confessed he was a

three or four-time convicted felon. His credibility, both

from the standpoint of moral trustworthiness and recol-

lection, was, therefore, of critical, decisive importance.

Beaudine at 421. In Beaudine, the appe!late court noted

that “at least twice, under objections made by govern-

ment counsel so frequently throughout the whole record

as to almost defy the orderly development of any particu-

lar fact or thread, the trial court severely restricted cross-

examination.” Beaudine at 421.

In the case at bar, Petitioner was physically able to

cross-examine Pavuk at trial. This, however, does not

automatically insure that he was not denied his constitu-

tional right to confrontation. Dorsey v. Warden Southern

Michigan and State Prison, 523 F.2d 590 (6th Cir. 1975).

Rather, the test is whether the opportunity existed to

cross-examine the witness. In the case at hand, the Court

sharply limited the scope and extent of Petitioner’s cross-

examination of unindicted co-conspirator/informant

Steven Pavuk. In doing so, the Court deprived Petitioner

of the opportunity to effectively cross-examine Pavuk

with respect to relevant and material issues.

Specifically, Petitioner sought to elicit information

from Pavuk concerning the nature of the billboard trans-

actions and dealings he personally had with Petitioner.

This information was critical to dispel the “guilt by

association” linkage that had been established when the

prosecution questioned Pavuk both about billboard deal-

ings with Powell, and separate billboard dealings with

Armistead. The dealings with Armistead were the basis

23

for Armistead’s conviction on Count Two. When a wit-

ness is So critical to the government’s case, the impor-

tance of a full cross-examination to disclose bias is

necessarily increased. United States v. Summers, 598

F.2d 450 (11th Cir. 1979).

This information was well within the scope of

cross-examination, as the inquiry was structured to ad-

dress issues the prosecution had first exposed. Addition-

ally, this line of questioning was material and relevant, for

Pavuk was an unindicted co-conspirator turned infor-

mant whose posture, bias and credibility were clearly in

question. Summers, 598 F.2d 450. This testimony went to

the heart of the impeachment of Pavuk and was critical to

the defense. Although Petitioner was able to partially

impeach Pavuk through alternate lines of inquiry, mainly

the contents of his plea bargain, this did not adequately

afford Petitioner the necessary latitude to fully impeach

the witness’ credibility and explain his perceptions vis-a-

24

vis Powell’s. The want of full impeachment of Pavuk

resulted in affirmative prejudice against Petitioner.

Il. THE TRIAL COURT CURTAILED THE DE-

FENSE FROM INTRODUCING COMPET

ING THEORIES OF THE CASE AND

THEREBY INFRINGED ON PETITIONER’S

FIFTH AMENDMENT RIGHT AGAINST

SELF-INCRIMINATION.

In this case, the Court developed a theory of the

case and sharply curtailed the defense from introducing

any competing theories. The Court’s predisposition was

evident throughout trial and manifested into a systematic

denial of Petitioner’s due process rights. Although it is

within the Court’s province to direct the jury’s fact

finding quest, the trial court is not endowed with the

power to restrain the Petitioner’s introduction of a rel-

evant, material defense theory. For example, the trial

court evidenced its posture toward Petitioner’s defense

theories when it stated:

25

COURT: I’m not going to allow you to develop

your theory that Mr. Powell understood they were

talking about billboards unless and until there is

some foundation for that. That’s what you are

trying to do at this point. You are trying to circum-

vent the ruling I made. You need to stop now and go

on to something else.

(R5-574)

In the case at hand, the trial court excised Petitioner’s

available defenses and then compounded this error by

creating a set of circumstances by which he had to forfeit

his Fifth Amendment right against self incrimination. At

one juncture during the cross-examination of Stephen

Pavuk, the following colloquy took place when Petitioner’s

counsel attempted to pursue a series of questions going to

the heart of his client’s defense:

COURT: ... Why wouldn’t it make more sense for

these questions to be asked after Mr. Powell has

given his testimony that you anticipate he will be

giving?

MR. LUDWICK: We haven’t made that determi-

nation first of all, and second, we have him on

26

cross-examination. He has already testified to these

things.

(R5-566)

COURT: Right. Well, wouldn’t it promote the

jury’s understanding of the case for this line of

questioning to be deferred until after Mr. Powell

has given his testimony?

MR. LUDWICK: What if Mr. Powell isn’t going to

testify?

COURT: Then it might not be a germain line of

inquiry.

(R5-567)

Systematically, the Court made rulings so as to

deny Petitioner the opportunity to present his defenses.

Additionally, the Judge conditioned the inquiry into cer-

tain relevant areas on Petitioner’s decision to take the

stand and testify. These rulings and determinations by the

Court rise to the level of constitutional error as they

deprived Petitioner of his right to a fair trial and due

process of law.

27

WHEREFORE, Petitioner requests this Honorable

Court grant this Petition for Writ of Certiorari.

Respectfully submitted,

ROBERT G. FIERER

Attorney for Petitioner

Georgia State Bar No. 259700

152 Nassau Street, N.W.

Atlanta, Georgia 30303

(404) 688-5500

- &

CERTIFICATE OF SERVICE

This is to certify that I have this day served a true

and correct copy of the foregoing Petition for Writ of

Certiorari upon the following:

Mr. William McKinnon

Assistant United States Attorney

1800 U.S. Courthouse

75 Spring Street, N.W.

Atlanta, Georgia 30303

Solicitor General

Department of Justice

Washington, D.C. 20530

by depositing a copy of same in the United States Mail

with adequate postage affixed thereon.

This 3rd day of February, 1991.

ROBERT G. FIERER

29

‘ a?

United States District Court for the

Northern District of Georgia

Judgment Including Sentence Under

The Sentencing Reform Act

United States Court of Appeals for

the Eleventh Circuit Opinion

United States Court of Appeals for

the Eleventh Circuit Judgment

30

United States District Court

Northern District of Georgia

United States of America Judgment Including Sentence

V. Under The Sentencing

James Garland Powell Reform Act

(Name of Defendant) Robert G. Fierer

Defendant’s Attorney

THE DEFENDANT:

[_] pleaded guilty to count(s)

| ] was found guilty on count(s) one after a plea of

not guilty.

Accordingly, the defendant is adjudged guilty of

such count(s), which involve the following offenses:

Title & Section Title 18, U.S.C.

Nature of Offense Conspiracy to Commit Extortion

Count Number(s) One

The defendant is sentenced as provided in pages 2 through

5 of this judgment. The sentence is imposed pursuant to

the Sentencing Reform Act of 1984.

|_] The defendant has been found not guilty on count(s)

and is discharged as to such counts.

|_|] Count(s) (is) (are) dismissed on the motion

of the United States.

[_] The mandatory special assessment is included in the

portion of this Judgment that imposes a fine.

|_| Itis ordered that the defendant shall pay to the United

States a special assessment of $ , which

shall be due immediately.

It is further ordered that the defendant shall notify

the United States Attorney for this district within 30 days

of any change of residence or mailing address until all

fines, restitution, costs, and special assessments imposed

by this Judgment are fully paid.

Defendant’ Soc. Sec. Number:

256-34-2175

Defendant’s Mailing Address:

3573 Dial Drive

Stone Mountain, Georgia 30083

Defendant’s Residence Address:

- Same as above -

Date of Imposition Sentence

August 16, 1990

Signature of Judicial Officer

Orinda D. Evans

United States District Judge

Name and Title of Judicial Officer

Date

AQ 245 S.(3/88) Sheet 2 - Imprisonment

Judgment—Page 2 of 5

Defendant: James Garland Powell

Case Number: CR89-433-01A

IMPRISONMENT

The defendant is hereby committed to the custody

of the United States Bureau of Prisons to be imprisoned

for a term of thirty-nine (39) months .

[_] The Court makes the following recommendations to

the Bureau of Prisons:

That the Atlanta Prison Camp be designated as place

of service of this sentence.

|] The defendant is remanded to the custody of the

United States Marshal.

[ | The defendant shall surrender to the United States

Marshal for this district

__ a.m.

[} at__p.m. on

(_] as notified by the Marshal.

| | The defendant shall surrender for service of sentence

at the institution designated by the Bureau of Prisons

|_| before 2 p.m. on

|_| as notified by the United States Marshal.

|_| as notified by the Probation Office.

RETURN

I have executed this Judgment as follows:

Defendant delivered on

to at ;

with a certified copy of this Judgment.

United States Marshal

by

Deputy Marshal

AQ 245 S.(3/88) Sheet 3 - Supervised Release

Judgment—Page 3 of 5

Defendant: James Garland Powell

Case Number: CR89-433-01A

SUPERVISED RELEASE

Upon release from imprisonment, the defendant

shall be on supervised release for a term of three (3) years.

While on supervised release, the defendant shall

not commit another Federal, state, or local crime and shall

—_—

comply with the standard conditions that have been

adopted by this court (set forth on the following page). If

this judgment imposes a restitution obligation, it shall be

a condition of supervised release that the defendant pay

any such restitution that remains unpaid at the com-

mencement of the term of supervised release. The defen-

dant shall comply with the following additional condi-

tions:

|_] The defendant shall pay any fines that remain unpaid at

the commencement of the term of supervised release.

The defendant shall pay at least $5,000 each month

toward any unpaid balance of the fine.

The defendant shall be prohibited from possessing a

firearm or other dangerous weapon.

The defendant is prohibited from incurring new

credit charges or opening additional lines of credit

without approval of the Probation Officer until the

fine has been paid in full.

The defendant shall provide the Probation Officer

requested financial information until the fine has

been paid in full.

AQ 245 S.(3/88) Sheet 5 -

Standard Conditioni f Probati

Judgment—Page 4 of 5

Defendant: James Garland Powell

Case Number: CR89-433-01A

STANDARD CONDITIONS OF SUPERVISION

While the defendant is on probation or supervised

release pursuant to this Judgment:

1) The defendant shall not commit another Federal,

State or local crime;

2) the defendant shall not leave the judicial district with-

out the permission of the court or probation officer;

3) the defendant shall report to the probation officer

as directed by the court or probation officer and

shall submit a truthful and complete written report

within the first five days of each month;

4) the defendant shall answer truthfully all inquiries

by the probation officer and follow the instructions

of the probation officer;

5) the defendant shall support his or her dependents

and meet other family responsibilities;

6) the defendant shall work regularly at a lawful

occupation unless excused by the probation officer

for schooling training, or other acceptable reasons;

7) the defendant shall notify the probation officer

with seventy-two hours of any change in residence

or employment;

8) the defendant shall refrain from excessive use of

alcohol and shall not purchase, possess, use, dis-

tribute, or administer any narcotic or other con-

trolled substance, or any paraphernalia related to

such substances, except as prescribed by a physician;

9) the defendant shall not frequent places where

controlled substances are illegally sold, used,

distributed or administered;

10) the defendant shall not associate with any persons

engaged in criminal activity, and shall not associ-

ate with any person convicted of a felony unless

granted permission to do so by the probation officer;

11) the defendant shall permit a probation officer to

visit him or her at any time at home or elsewhere

and shall permit confiscation of any contraband

observed in plain view by the probation officer;

12) the defendant shall notify the probation officer

within seventy-two hours of being arrested or

questioned by a law enforcement officer;

13) the defendant shall not enter into any agreement to act

as an informer or a special agent of a law enforcement

agency without the permission of the court;

14) as directed by the probation officer, the defendant

shall notify third parties of risks that may be occa-

sioned by the defendant’s criminal record or per-

sonal history or characteristics, and shall permit

the probation officer to make such notifications

and to confirm the defendant’s compliance with

such notification requirement.

These conditions are in addition to any other condi-

tions imposed by this Judgment.

iinet

AO 245 S.(3/88) Sheet 6 -

Fine With Special / )

Judgment—Page 5 of 5

Defendant: James Garland Powell

Case Number: CR89-433-01A

FINE WITH SPECIAL ASSESSMENT

The defendant shall pay to the United States the

sum of $75.000.00, consisting of a fine of $75.000.00 and

a special assessment of $50.00.

| | These amounts are the totals of the fines and assess-

ments imposed on individual counts, as follows:

This sum shall be paid [_] immediately.

|_| as follows:

as directed by the

Probation Office.

Hl The Court has determined that the defendant does

not have the ability to pay interest. It is ordered that:

The interest requirement is waived.

The interest requirement is modified as follows:

[JU

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 90-8871

Non-Argument Calendar

District Court Docket No. 1:89-CR-433-01

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES GARLAND POWELL,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Georgia

November 5, 1991

Before HATCHETT, EDMONDSON and DUBINA,

Circuit Judges.

PER CURIAM:

Appellant was tried and convicted of conspiracy to

extort in violation of the Hobbs Act, 18 U.S.CS. 1951. He

appeals both conviction and sentencing. We AFFIRM.

First, appellant argues that the district court erred in

instructing the jury on the claim of right defense and the

mens rea element of the Hobbs Act. In particular, appel-

lant complains that the instruction that “wrongful” means

to obtain money “unfairly and unjustly” encompasses

behavior which may be unethical, but not unlawful.

Appellant thus ignores the balance of the court’s instruc-

tion, which referred to one who has “no lawful claim to

[the money], and who knows in his own mind that he does

not have a lawful claim” (emphasis added). This instruc-

tion— taken as a whole—correctly and unambiguously

states the law on claim of right and mens rea.

Second, absent a clear abuse of discretion, the

district court’s evidentiary rulings must be upheld. The

court did not curtail appellant’s theory of the case, but

merely postponed the introduction of certain evidence

until a proper foundation could be laid.

Finally, appellant’s objections to the district court’s

refusal to downwardly depart under the Sentencing Guide-

lines, and to the Guidelines themselves, are without

_merit. See United States v. Castellanos, 904 F.2d

1490,1497-98 (11th Cir. 1990)(defendant may not appeal

refusal to depart downward); United States v. Harris, 876

F.2d 1502,1504-06 (11th Cir. 1989)(sentencing Guide-

lines do not violate due process).

AFFIRMED.

United States Court of Appeals

FOR THE ELEVENTH CIRCUIT

No. 90-8871

Non-Argument calendar

D.C. Docket No. 1:89-CR-433-01

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES GARLAND POWELL,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Georgia

Before HATCHETT, EDMONSON and DUBINA,

Circuit Judges.

JUDGMENT

This cause came to be heard on the transcript of the

record from the United States District Court for the

Northern District of Georgia, and was taken under sub-

mission by the Court upon the record and briefs on file,

pursuant to Circuit Rule 34-3;

:

ON CONSIDERATION WHEREOF, it is now

hereby ordered and adjudged by this Court that the

judgment of conviction of the said District Court and

sentence imposed in this cause be and the same are herby

AFFIRMED.

Entered: November 5,1991

For the Court: Miguel J. Cortez, Clerk

By:

Deputy Clerk

ISSUED AS MANDATE: NOV. 29, 1991