In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2535
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARCUS T. P OWELL,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 08-cr-30221—Michael J. Reagan, Judge.
A RGUED JUNE 8, 2011—D ECIDED JULY 13, 2011
Before P OSNER, K ANNE, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. A jury convicted appellant
Marcus T. Powell of two counts of distributing crack
cocaine, and the district court sentenced him to 420
months’ imprisonment for those offenses. Powell now
claims that evidence offered against him regarding his
other drug dealing activity was inadmissible, that the
jury was allowed to hear testimony regarding his likely
sentence if convicted, and that the court should not
have instructed the jury on an aiding-and-abetting theory
2 No. 10-2535
of criminal liability. Powell also asks us to reconsider
circuit precedent barring retroactive application of the
Fair Sentencing Act of 2010. We affirm.
I. The Facts
On January 17, 2008, law enforcement officials directed
confidential informant Darnell Yarbrough to contact
Powell and arrange a purchase of crack cocaine. After
calling Powell, Yarbrough proceeded to a residence in
East St. Louis, Illinois, where he used money provided by
law enforcement to purchase a quantity of crack cocaine.
On January 30, Yarbrough again contacted Powell and
arranged a second purchase of crack cocaine. Yarbrough
then returned to the same residence in East St. Louis,
where he again used money provided by law enforcement
to purchase a quantity of crack cocaine. After each con-
trolled buy, Yarbrough turned over the cocaine he pur-
chased to law enforcement officers. Following these
two controlled buys, Powell was arrested and charged
with two counts of intentionally distributing five grams
or more of crack cocaine in violation of 21 U.S.C.
§§ 841(a)(1) & (b)(1)(B).
At trial, the prosecution’s star witness was Yarbrough,
who testified that he had purchased cocaine from
Powell on January 17 and January 30, 2008. During
Yarbrough’s testimony, the prosecution played for
the jury the recordings of the January 17 telephone con-
versations between Yarbrough and Powell arranging
the initial controlled buy. The prosecution also played
for the jury video recordings Yarbrough secretly made
No. 10-2535 3
when he purchased the cocaine from Powell. Those video
recordings show that a number of individuals were
inside the residence at the time Yarbrough made the
controlled buys.
The evidence at trial also included recordings of tele-
phone calls Powell made from the Alton City Jail after
his arrest. In those calls, Powell — apparently unaware
that it is common practice to record prisoners’ calls —
admitted his guilt of the crimes with which he had been
charged. In one call, Powell admitted that if he had not
been arrested, he would still be on the street selling
drugs. In another, Powell complained that Yarbrough
had underpaid him for the January 17 sale, and he specu-
lated that Yarbrough had recorded the drug sales using
a camera hidden in a necklace. In yet another, Powell
explained that he would rather be considered a drug
smuggler than a drug dealer, and he bragged that
“as much shit as I be doing . . . they ain’t got me on [any-
thing] but two . . . sales.”
The jury convicted Powell on both counts of the indict-
ment. At sentencing, the district judge characterized
Powell as the most dangerous drug dealer he had ever
encountered, an individual “devoid of a conscience” who
manipulated the court system “in order to buy more
time to intimidate witnesses from testifying.” The district
court also took note of the extraordinary measures neces-
sary during trial and at sentencing to maintain order
and to ensure the safety of the witnesses against Powell.
Based on all of this, as well as Powell’s leadership role
in a large-scale drug distribution network, the court
4 No. 10-2535
deemed it necessary that Powell “be incarcerated until
[he is] criminally impotent” and sentenced him to 420
months’ imprisonment, a time the court estimated to be
just short of the likely remainder of Powell’s natural life.
This appeal followed.
II. Cumulative Error
Powell’s primary argument on appeal is that a num-
ber of evidentiary errors resulted, cumulatively, in the
denial of his constitutional right to a fair trial. To succeed
on this theory, Powell must show (1) that multiple errors
occurred at trial; and (2) those errors, in the context of the
entire trial, were so severe as to have rendered his trial
fundamentally unfair. Alvarez v. Boyd, 225 F.3d 820, 824
(7th Cir. 2000). Only rarely will multiple insignificant
errors result in sufficient prejudice to justify reversal;
we take particular care “not to magnify the significance
of errors which had little importance in the trial”
merely because more than one such error occurred. Id.
at 825. In conducting this analysis, we “examin[e] . . . the
entire record, paying particular attention to the nature
and number of alleged errors committed; their interrela-
tionship, if any, and their combined effect; how the
trial court dealt with the errors, including the efficacy
of any remedial measures; and the strength of the pros-
ecution’s case.” Id.
To show the multiple errors necessary under cumula-
tive error analysis, Powell asserts that Yarbrough’s state-
ments about Powell’s other drug dealing activity were
all inadmissible under Federal Rule of Evidence 404(b).
No. 10-2535 5
At trial, Yarbrough testified that Powell had “fronted”
him some cocaine in May 2007 because Yarbrough was
low on cash at the time. Yarbrough also testified that, in
March 2008, after the charged sales of cocaine, Powell
was going out of town to pick up some cocaine and
offered Yarbrough “extra cocaine for [his] money” if he
paid in advance. Lastly, Yarbrough testified that he had
called Powell on July 16, 2008, to discuss a possible pur-
chase of crack cocaine. This brief telephone call was
recorded, and the recording was played for the jury.
The district court overruled Powell’s objections to all
of this testimony, instructing the jury that it could
consider Yarbrough’s statements only as evidence of
Powell’s intent.
The district court erred by admitting this evidence of
Powell’s other drug dealing activity as evidence of his
intent to unlawfully distribute cocaine. Although Rule
404(b) generally allows evidence of other bad acts as
proof of a defendant’s intent, such bad acts may be ad-
mitted as evidence of a defendant’s intent to distribute
illegal narcotics only when that defendant has put his
intent at issue. See United States v. Hicks, 635 F.3d 1063,
1070-71 (7th Cir. 2011). Distribution of cocaine is, by
its very nature, “a general intent crime,” the necessary
intent for which “is not above or beyond that which
can generally be inferred based on proof of the act (distri-
bution) in question.” United States v. Manganellis, 864
F.2d 528, 539 (7th Cir. 1988). After all, when a person
knowingly exchanges a dime bag of cocaine for a handful
6 No. 10-2535
of cash, his intent is rarely in doubt.1 For this reason,
without a direct challenge to the prosecution’s evidence
of intent, such other bad acts are merely cumulative of
direct evidence that a defendant distributed drugs
on the dates charged in the indictment, and have little
additional probative value on the issue of the defendant’s
intent for the charged crimes.2
At the same time, such other bad acts’ potential for
unfair prejudice is substantial. The prior acts used to
show intent to distribute narcotics are often prior drug
dealings, and it can be easy for jurors to slide across
Rule 404(b)’s slippery boundary between proper con-
sideration of intent and improper consideration of pro-
pensity. Because those prior acts have minimal proba-
tive value in the absence of a challenge to the evidence
of intent, and because they are particularly susceptible
to misuse, they are generally not admissible to show
an intent to distribute drugs on the familiar ground
1
This is in contrast with, for example, homicide crimes.
When one person kills another, a wide variety of mental
states — intent, recklessness, negligence — may be consistent
with that act, making specific evidence beyond that of the act
itself often necessary to show the killer’s precise mental state.
2
Two of the other acts at issue here occurred after Powell’s
charged drug sales. While Rule 404(b) does not restrict the
evidence concerning other acts to events that took place
before the alleged crime, the probative value of post-offense
conduct may often be somewhat limited, depending on
the circumstances. See United States v. Anifowoshe, 307 F.3d 643,
646-47 (7th Cir. 2002).
No. 10-2535 7
that evidence is inadmissible if its potential for unfair
prejudice significantly outweighs its probative value.
Only if the defendant puts his intent at issue, then, is it
possible to present Rule 404(b) evidence regarding such
intent, shifting the probative/prejudicial balance in favor
of admission. See Hicks, 635 F.3d at 1070-71. Because
Powell never put his intent at issue, the evidence of
his other drug dealings with Yarbrough was not ad-
missible under Rule 404(b).
Although Powell has managed to show that multiple
errors occurred at his trial, those errors were harmless
beyond any reasonable doubt. The evidence the gov-
ernment brought to bear against Powell — the recordings
of the telephone calls arranging the initial purchase
of cocaine, Yarbrough’s testimony, the video recordings
of each sale, and the recordings of Powell’s telephone
calls from jail — was overwhelming. The district court
observed at sentencing that the evidence was so strong
that “only 12 people unfit to serve as jurors could have
found [Powell] not guilty.” In light of the quantity
and quality of evidence of Powell’s guilt adduced at
trial, we are confident that the relatively minor errors of
which Powell complains did not have any effect on
the jury’s verdict.3
3
Powell also complains that one government witness incor-
rectly referred to a man named Ricardo Mason as Powell’s “co-
defendant,” and that the government presented testimony
that Yarbrough’s actions as a confidential informant had led
Mason to plead guilty to drug charges. Even if we assumed
(continued...)
8 No. 10-2535
III. Aiding and Abetting Instruction
Over Powell’s objection, the district court instructed
the jury that anyone who aids in the commission of an
offense may be found guilty of that offense if he
knowingly associates with the criminal activity, partici-
pates in the activity, and tries to make it succeed. Powell
argues that this instruction was erroneous because it
was not supported by the evidence at trial and because
the prosecution first requested this instruction only
after two of its witnesses had already testified and been
cross-examined.
We review the district court’s decision to give an in-
struction on aiding and abetting, like all jury instruc-
tions, for an abuse of discretion, reviewing any under-
lying issues of law de novo. United States v. Tavarez,
3
(...continued)
that this testimony was in error, that would not alter our
harmless error analysis. For one thing, Powell immediately
objected to this testimony, and the district court sustained both
objections. Regarding Mason’s guilty plea, the court cured any
error when it instructed the jury to disregard Yarbrough’s
statement and explained that Mason’s guilty plea “has nothing
to do with this case.” See, e.g., United States v. Fulk, 816 F.2d
1202, 1205-06 (7th Cir. 1987) (noting that any error was cured
when the district court sustained the defendant’s objection
and “immediately issued a cautionary instruction”). While
the district court gave no such cautionary instruction when
Yarbrough referred to Mason as a “co-defendant,” it had no
need to do so. Powell’s sustained objection was, “There are
no co-defendants.”
No. 10-2535 9
626 F.3d 902, 904 (7th Cir. 2010). If Powell’s indictment
had referred to 18 U.S.C. § 2(a), which states the basic
principle that a person who aids and abets a criminal
offense is punishable as if he committed the offense
himself, Powell could not complain about an instruction
informing the jury as much. United States v. Robinson, 956
F.2d 1388, 1394-95 (7th Cir. 1992). The indictment in
this case made no such reference to section 2(a), but
because section 2(a) does not create a separate offense,
but merely “makes those who aided and abetted a crime
punishable as principals,” United States v. Galiffa, 734
F.2d 306, 312 (7th Cir. 1984), an instruction on aiding
and abetting may be given “so long as the evidence
warrants the instruction and no unfair surprise results,”
United States v. Ruiz, 932 F.2d 1174, 1180 (7th Cir. 1991).
The instruction on aiding and abetting was war-
ranted so long as some evidence indicated that Powell
associated himself with the drug sale, participated volun-
tarily in it, and tried to make it succeed. See United States
v. Aldaco, 201 F.3d 979, 989 (7th Cir. 2000) (noting that
court of appeals will not disturb jury instructions that
have at least some support in the record); United States
v. Wimberly, 79 F.3d 673, 676 (7th Cir. 1996) (same); see
also United States v. Heath, 188 F.3d 916, 921 (7th Cir.
1999) (describing classic elements of aiding and abetting).
The evidence at trial showed exactly that: even if Powell
did not personally hand the cocaine to Yarbrough, he
arranged the sale and prepared the crack cocaine
himself to reassure Yarbrough of its quality. That is
more than enough evidence to support an instruction
on aiding and abetting.
10 No. 10-2535
Regarding unfair surprise, Powell admits that his trial
strategy was “to suggest that [he] was not guilty because
he was not a principal in the drug sales charged.” Having
adopted this strategy, Powell cannot claim that he was
unfairly surprised by the government’s request for an
instruction on aiding and abetting. See United States v.
Smith, 727 F.2d 214, 218 (2d Cir. 1984) (finding claim of
unfair surprise “incredible,” given that the instruction
was requested in response to the defendant’s allegation
that another individual “actually committed” the crimes
charged); see also United States v. Cooper, 375 F.3d 1041,
1051 (10th Cir. 2004) (“When defense counsel made the
tactical decision to suggest a second individual was
involved in the robbery, he sacrificed the argument that
[the defendant] was unfairly surprised by a subsequent
aiding and abetting instruction. It is irrelevant that
[the defendant] alone was charged.”). The district court
did not abuse its discretion by instructing the jury on
aiding and abetting.4
4
We question whether it is ever possible for a defendant to
be unfairly surprised by an aiding and abetting instruction.
Neither Powell nor we have found any published cases
finding such unfair surprise. (The one case Powell cites on
the issue is entirely off point.) Aiding and abetting is not
a separate crime but a fundamental principle of criminal
liability, and every competent member of the defense bar
should be aware of it.
No. 10-2535 11
IV. Motion for Mistrial
Powell further contends that the district court should
have granted his request for a mistrial. In one of the
recorded telephone calls, Powell explained that the two
cocaine sales with which he was charged were “petty,” but
that if he had been caught later, the prosecution “woulda
been trying to bury” him for all the drug sales he would
have made during that time. After this recording was
played for the jury, a prosecution witness explained that
Powell was saying that, if the government “had con-
tinued the investigation for eight years” longer, it
would have had “a lot more crack cocaine” and Powell
“would be looking at a substantial amount of time.”
Powell immediately moved for a mistrial, claiming that
this testimony implied that “he is not looking at all that
much time if [found] guilty.” Although the district court
agreed with Powell that “any indication as to what the
potential sentence in this case would be . . . is improper,”
it denied Powell’s motion on the grounds that the
witness’s statement was “a fair comment on what
[Powell] had said and [a] fair interpretation.” Instead, the
district court instructed the jury that Powell’s potential
prison sentence was irrelevant and could not be taken
into consideration when reaching its verdict.
We review the district court’s denial of Powell’s
motion for a mistrial for an abuse of discretion. United
States v. Collins, 604 F.3d 481, 489 (7th Cir. 2010). A mistrial
is appropriate when “an event during trial has a real
likelihood of preventing a jury from evaluating the evi-
dence fairly and accurately, so that the defendant has
12 No. 10-2535
been deprived of a fair trial.” United States v. Tanner, 628
F.3d 890, 898 (7th Cir. 2010), quoting Collins, 604 F.3d at
489. In light of the district court’s actions in sustaining
the objection and instructing the jury to disregard the
irrelevant information, we are confident that this testi-
mony had no such effect on the jury. In essence, Powell’s
argument is that he was irrevocably prejudiced because
the jury learned that the penalties that he faced for the
two charged sales were relatively small when compared
to the prison time Powell would have faced had he not
been apprehended before he could sell more drugs. But
the connection between the quantity of drugs sold and
the sentence imposed is unlikely to surprise any person
competent to serve on a jury. The jury was not rendered
unable to deliberate fairly on the merits of Powell’s case
merely because it heard and was told to disregard this
legal truism. The district court acted well within its
discretion by denying Powell’s motion for a mistrial
and relying instead on a curative instruction. See, e.g.,
United States v. Ferguson, 935 F.2d 1518, 1528 (7th Cir.
1991) (holding that curative instruction was sufficient
to guarantee defendant a fair trial, rendering a mistrial
inappropriate).
V. Retroactive Application of the Fair Sentencing Act
Finally, Powell argues that his sentence was imposed
in violation of the Fair Sentencing Act of 2010, which
“amended the Controlled Substances Act and Controlled
Substances Import and Export Act by resetting the drug
quantities required to trigger mandatory minimum sen-
No. 10-2535 13
tences.” United States v. Bell, 624 F.3d 803, 814 (7th Cir.
2010). Because Powell was sentenced on June 23, 2010,
before President Obama signed the Act into law on
August 3, 2010, the Act has no application here unless
it applies retroactively to sentences imposed before its
date of passage. Powell argues for the Act’s retroactive
application to his case.
In response, the government asks us to limit our review
to plain error because “Powell did not raise this issue
[before the district court] even though the legislation that
eventually became the Fair Sentencing Act . . . was intro-
duced on October 15, 2009, before Powell’s sentencing.”
We decline this invitation. Although we will review
arguments not made to the district court for plain
error even if those arguments were rendered futile by
precedent in existence at the time of trial, see, e.g., United
States v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005)
(explaining our plain error review of sentences
imposed before the Supreme Court’s decision in United
States v. Booker, 543 U.S. 220 (2005)), to say that an argu-
ment is futile under court precedent, which may be
reevaluated at any time at a party’s request, is not the
same as saying that an argument is futile because it is
based on the language of a proposed statute not yet
enacted as law. After all, no federal court has the power
to unilaterally reduce the statutory penalties for the sale
of crack cocaine when Congress has not enacted legisla-
tion to do so. See, e.g., Warden, Lewisburg Penitentiary v.
Marrero, 417 U.S. 653, 664 (1974) (“Punishment for
federal crimes is a matter for Congress, subject to
judicial veto only when the legislative judgment
oversteps constitutional bounds.”). And it makes little
14 No. 10-2535
sense to say that, by failing to request relief from the
district court that no court had the power to grant, a
defendant forfeited that request on appellate re-
view. Plain error review is inappropriate in this case,
and we review Powell’s claim de novo, as we would any
other question of law affecting sentencing. See, e.g., United
States v. Hall, 608 F.3d 340, 346 (7th Cir. 2010).
Turning to the merits of Powell’s argument, we have
already held that the Fair Sentencing Act does not apply
retroactively to sentences imposed before that Act was
signed into law. Bell, 624 F.3d at 814. Every circuit to
address this issue has reached the same conclusion.
United States v. Bullard, 2011 WL 1718894, at *10-11 (4th Cir.
May 6, 2011); United States v. Goncalves, 2011 WL 1631649,
at *5-7 (1st Cir. April 28, 2011); United States v. Doggins, 633
F.3d 379, 384 (5th Cir. 2011); United States v. Reevey,
631 F.3d 110, 115 (3d Cir. 2010); United States v. Diaz, 627
F.3d 930, 931 (2d Cir. 2010) (per curiam); United States
v. Lewis, 625 F.3d 1224, 1228 (10th Cir. 2010); United
States v. Brewer, 624 F.3d 900, 909 n.7 (8th Cir. 2010);
United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.
2010) (per curiam); United States v. Carradine, 621 F.3d
575, 580 (6th Cir. 2010). We recently declined an invita-
tion to overturn Bell. United States v. Fisher, 635 F.3d 336,
338 (7th Cir. 2011). We do so again today.5
5
Two judges dissented from this court’s decision not to rehear
Fisher en banc, arguing that the Fair Sentencing Act should
apply to defendants who, unlike Powell, were sentenced after
that Act’s passage. United States v. Fisher, ___ F.3d ___, 2011 WL
(continued...)
No. 10-2535 15
Defendant Powell’s convictions and sentence are
A FFIRMED.
5
(...continued)
2022959 (7th Cir. May 25, 2011) (Williams, J., dissenting
from denial of rehearing en banc).
7-13-11