United States v. Daniel James Powell

Appellant Daniel James Powell (“Powell”) appeals pretrial denial of his alternative motions either to dismiss a conspiracy indictment against him or to strike two overt acts from that indictment. The motions rested on Powell’s contention that a prior acquittal on a possession charge collaterally estopped the Government from retrying him. We affirm the denial of the motion to dismiss. The appeal from the denial of the motion to strike is dismissed for lack of appellate jurisdiction.

I. BACKGROUND

A. Proceedings

Powell was originally charged with conspiring with Judd Powell, Jr., his brother, and Mark Stanley to possess with intent to distribute and to distribute marijuana, in violation of 21 U.S.C. §§ 841 (a)(1) and 846. A second count alleged possession of 3,575 pounds of marijuana with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1). Judd Powell and Stanley were also indicted on this count. After a jury trial, Powell was convicted on the conspiracy charge and acquitted on the possession charge. He appealed and this court reversed his conspiracy conviction because of prejudicial errors concerning the admission of evidence and the denial of a continuance. See United…