United States v. Almond Richardson , 781 F.3d 237 ( 2015 )

Case: 13-31190 Document: 00512976614 Page: 1 Date Filed: 03/20/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-31190 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, March 20, 2015
Lyle W. Cayce
Plaintiff–Appellee Clerk
v.
ALMOND J. RICHARDSON,
Defendant–Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
Before PRADO, ELROD, and HAYNES, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
This appeal presents the question of whether the trial testimony of a
government witness elicited in contravention of the defendant’s Sixth
Amendment right of self-representation constitutionally may be admitted in
the defendant’s retrial when the witness becomes unavailable between the first
and second trials. We conclude that, if the defendant had an adequate
opportunity for cross-examination at the first trial, then the witness’s prior
testimony may be introduced in the second trial without offending the
Confrontation Clause, at least when the defendant has not claimed that he
received ineffective assistance of counsel at the first trial.
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In addition, we find the appellant’s remaining claims of error—the denial
of a mistrial and the application of the federal sentencing guidelines—to be
without merit. We therefore affirm the conviction and sentence.
I. FACTUAL AND PROCEDURAL BACKGROUND
In May 2007, Garfen Neville, a confidential informant, contacted the
Narcotics Division of the East Baton Rouge Sheriff’s Office to offer information
about local narcotics trafficking. Neville reported that an individual, later
identified as Appellant Almond Richardson, was selling narcotics out of his
apartment as well as his business, a store called Just 4 U Fashion.
On May 17, 2007, the officers arranged a controlled narcotics purchase
between Neville and Richardson at Richardson’s home. The officers equipped
Neville with a wire, gave him $500 in prerecorded buy money, searched him to
ensure that he had no other money or narcotics in his possession, and
instructed him to buy fifty doses of ecstasy. One officer watched Neville’s
interaction with Richardson, while other officers listened to the exchange over
Neville’s wire; all officers reported observations consistent with a narcotics
transaction. Afterwards, the officers met Neville at an agreed location, and
Neville confirmed the purchase and turned the narcotics over to the police.
The following day, the officers obtained an arrest warrant for Richardson
and a search warrant for his apartment. They also conducted surveillance of
Just 4 U Fashion and observed what appeared to be hand-to-hand narcotics
transactions between Richardson and several unapprehended individuals. The
officers entered the store and arrested Richardson. During a search of
Richardson’s person incident to his arrest, officers discovered two bills of
Neville’s prerecorded buy money.
The officers then executed the search warrant at Richardson’s apartment
and secured a search warrant for Just 4 U Fashion. Although the search of
Richardson’s home yielded no contraband, the ensuing search of Just 4 U
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Fashion yielded a digital scale; marijuana; and a bag containing 287 doses of
ecstasy, a small amount of marijuana, one Lortab (hydrocodone) pill, and one
unidentified pill.
A federal grand jury indicted Richardson on charges of distribution of
crack cocaine, possession of a firearm by a convicted felon, manufacture of
marijuana, possession of marijuana, distribution of ecstasy, and possession of
ecstasy with intent to distribute. 1 Four days before the scheduled trial date,
Richardson moved to represent himself. The district court denied Richardson’s
motion to proceed pro se, and the case proceeded to trial with Richardson
represented by retained counsel Steven Moore. 2 All of the Government’s
witnesses, including Neville, were cross-examined by Moore. Moore specifically
questioned Neville about his motives for cooperating with the police, his past
arrests and convictions for narcotics-related and violent offenses, and his
relationship with Richardson.
The jury convicted Richardson of five of the seven charges—possession of
a firearm by a convicted felon, manufacture of marijuana, possession of
1 Several of these counts pertained to a March 2006 arrest, which Richardson
contested in his first appeal. United States v. Richardson, 478 F. App’x 82, 87–89 (5th Cir.
2012) (per curiam). He raises no claims of error related to the first arrest or the first set of
charges in the present appeal.
2 Richardson offered conflicting explanations for his request to dismiss Moore as
counsel and represent himself. He testified at the hearing on his motion to proceed pro se
that “[t]he problem [he] had with Mr. Moore was . . . the foundation of the argument,”
explaining that he wished to present alibi evidence and challenge the veracity of the
information in the warrant affidavits. The district court and Moore explained the limits on
Richardson’s ability to advance these theories at trial, given the rulings on the motions to
suppress and the want of competent corroborative evidence, but Richardson maintained his
disagreement with Moore on trial strategy. Moore also affirmed that he and Mr. Richardson
“ha[d] become . . . diametrically opposed [on] certain issues,” including matters of strategy
that implicated Moore’s ethical obligations, such that the representation was “not conflict-
free.” Richardson alternately claimed that he had hired Moore only to argue the pretrial
motions to suppress, and that Moore “knew [of this arrangement] well in advance.” However,
Richardson denied having received an engagement letter setting forth the scope of Moore’s
representation, and averred that his communications with Moore were “limited.”
3
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marijuana, distribution of ecstasy, and possession of ecstasy with intent to
distribute. The Presentence Investigation Report (PSR) assigned Richardson a
total offense level of 32, resulting in a U.S. Sentencing Guidelines Manual
(U.S.S.G. or Guidelines) sentencing range of 210 to 262 months’ imprisonment.
Due in part to a 1999 conviction for armed robbery, the PSR classified
Richardson as a career offender pursuant to U.S.S.G. § 4B1.1. Richardson
objected to the career-offender enhancement, arguing that there were no records
of the armed-robbery arrest or plea agreement. The probation office disagreed,
citing sentencing minutes confirming Richardson’s conviction, and the district
court adopted the PSR without amendment.
Richardson appealed his conviction, arguing that the district court erred
by denying (1) his motions to suppress, (2) his motion for a Franks hearing to
present evidence contesting the veracity of the statements in the search-warrant
affidavit, and (3) his motion to proceed pro se. United States v. Richardson, 478
F. App’x 82, 83 (5th Cir. 2012) (per curiam). 3 A panel of this Court found no error
in the district court’s rulings on the motions to suppress and the motion for a
Franks hearing, but it concluded that the district court had violated
Richardson’s Sixth Amendment right of self-representation. Id. at 92.
Accordingly, the panel vacated Richardson’s conviction and sentence and
remanded for further proceedings, noting that its disposition of all motions
presented to the district court before Richardson invoked his right of self-
representation would be controlling on remand. Id. at 92 & n.13.
Following remand, the district court accepted Richardson’s waiver of his
right to counsel and, on the Government’s motion, dismissed two counts from
the indictment. Richardson, proceeding pro se with standby counsel, was tried
3Richardson raised no other claims of error in his first appeal to this Court. See First
Original Brief for Appellant Almond J. Richardson at 1, Richardson, 478 F. App’x 82 (No. 11-
30151), 2011 WL 8320499.
4
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for distribution of ecstasy, possession of ecstasy with intent to distribute, and
possession of marijuana.
Between the first and second trials, however, Neville was murdered in
an apparent failed narcotics transaction. Richardson filed a motion in limine,
seeking, inter alia, to exclude Neville’s prior testimony or, in the alternative,
to present evidence to impeach Neville. At the hearing on the motion,
Richardson decried Moore’s cross-examination of Neville as deficient and
expressed his view that Moore was “not adequately prepared” to attack
Neville’s testimony. The district court denied Richardson’s motion to exclude
Neville’s prior testimony, finding no violation of Federal Rule of Evidence
804(b)(1) or the Confrontation Clause, and granted Richardson’s request for
records concerning the circumstances of Neville’s death. The district court
observed that it had “extensively reviewed” Neville’s direct- and cross-
examination and concluded that “the opportunity to cross-examine Neville,
while admittedly not exactly as the defendant wishes it had been, was
adequate and meaningful under the law.” Further, the district court found
“that counsel for the defendant did question Neville with a similar motive as
the defendant maintains in the current proceedings, despite the possible
difference in trial strategy.” At trial, Richardson renewed his objection to
Neville’s prior testimony and was again overruled.
In addition, during the second trial, Detective Sergeant Rob Chambers
made three statements that drew objections from Richardson and ultimately
served as the basis for Richardson’s motion for mistrial. Specifically, Chambers
testified that Richardson told him at the time of his arrest that he was working
as an informant for the Drug Enforcement Administration (DEA); that Neville
claimed to have met Richardson while the two men were working as
informants in New Orleans; and that narcotics other than those at issue in the
trial were recovered from Just 4 U Fashion. The judge sustained Richardson’s
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objections and instructed the jury to disregard each statement. Richardson
contended that the Government had not disclosed his and Neville’s statements
before trial and that Chambers’s reference to uncharged narcotics was
extraordinarily prejudicial. The district court denied Richardson’s motion,
citing its curative instructions, but it offered to permit Richardson to
supplement the proposed jury charges. The district court also denied
Richardson’s subsequent motions for a judgment of acquittal. The jury
ultimately found Richardson guilty on all counts.
At sentencing, the PSR again assigned a total offense level of 32 and a
Guidelines range of 210 to 262 months’ imprisonment, and again applied the
career-offender enhancement based in part on Richardson’s 1999 conviction for
armed robbery. Richardson again objected to the career-offender enhancement
but now argued that his guilty plea was involuntary. He could not, however,
provide any records to support this claim, as the relevant court records, he said,
likely had been destroyed by Hurricane Katrina. The probation office disagreed
with Richardson, asserting that it had obtained records supporting the validity
of the conviction, “including a charging instrument, waiver of rights form,
electronic sentencing minutes, and Louisiana Department of Public Safety and
Corrections documents.” The district court overruled Richardson’s objection 4
and sentenced him to a term of 210 months’ imprisonment and five years of
supervised release.
Richardson timely appealed his conviction and sentence.
4Although the record is not clear as to which documents the district court had before
it when ruling on this objection, the Government asserts that the district court had the
minute entry and docket sheet. Additionally, the Government successfully moved this Court
to supplement the record with all of the documents referenced in the Supplemental
Addendum to the PSR.
6
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II. DISCUSSION
The district court had jurisdiction over the original criminal action under
18 U.S.C. § 3231. This Court has jurisdiction over Richardson’s appeal under
28 U.S.C. § 1291.
Richardson, now represented by counsel, raises three claims of error
relating to his conviction and sentence. First, he argues that the admission of
Neville’s prior testimony at the second trial violated the Confrontation Clause
because this testimony was taken in violation of his Sixth Amendment right of
self-representation. Second, he contends that the district court erred in
denying his motion for a mistrial based on Detective Sergeant Chambers’s
testimony. Third, he asserts that the district court erroneously premised the
career-offender enhancement on an involuntary guilty plea. We discuss each
claim of error in turn.
A. The Confrontation Claim
Richardson claims that the admission of Neville’s prior testimony in the
second trial violated his Sixth Amendment right to confront adverse witnesses
because the denial of his right of self-representation at the first trial deprived
him of an adequate opportunity to cross-examine Neville. This is a matter of
first impression in this Circuit.
“Alleged violations of the [Sixth Amendment’s] Confrontation Clause are
reviewed de novo, but are subject to a harmless error analysis.” United States v.
Bell, 367 F.3d 452, 465 (5th Cir. 2004).
The Confrontation Clause of the Sixth Amendment provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” U.S. Const. amend. VI. The Clause bars the
introduction of testimonial evidence against a criminal defendant unless the
proponent shows both that the declarant is unavailable and that the defendant
had “a prior opportunity for cross-examination.” Crawford v. Washington, 541
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U.S. 36, 68 (2004). The Court has repeatedly emphasized that the purpose of
the cross-examination requirement is to enable the opponent to test the
credibility of the witness and the reliability of his proffered testimony. 5
Correspondingly, while excessive limitations on the scope of cross-examination
may violate a defendant’s Sixth Amendment right of confrontation, the Clause
requires only an adequate opportunity for cross-examination. 6
Applying these standards, this Court has held that the Confrontation
Clause “is satisfied where defense counsel has been ‘permitted to expose to the
jury the facts from which jurors, as the sole triers of fact and credibility, could
appropriately draw inferences relating to the reliability of the witness.’” United
States v. Restivo, 8 F.3d 274, 278 (5th Cir. 1993) (quoting Davis, 415 U.S. at
318). “The relevant inquiry is whether the jury had sufficient information to
appraise the bias and motives of the witness.” United States v. Tansley, 986 F.2d
880, 886 (5th Cir. 1993). 7
5 See Crawford v. Washington, 541 U.S. 36, 61 (2004) (“[The Clause] commands, not
that evidence be reliable, but that the reliability be assessed in a particular manner: by
testing in the crucible of cross-examination.”); Davis v. Alaska, 415 U.S. 308, 316 (1974)
(“Cross-examination is the principal means by which the believability of a witness and the
truth of his testimony are tested.”); Mattox v. United States, 156 U.S. 237, 242–43 (1895)
(noting that the Clause contemplates “a personal examination and cross-examination of the
witness, in which the accused has an opportunity, not only of testing the recollection and
sifting the conscience of the witness, but of compelling him to stand face to face with the jury
in order that they may . . . judge . . . whether he is worthy of belief”).
6 See Crawford, 541 U.S. at 57 (reading Mattox as “holding that prior trial or
preliminary hearing testimony is admissible only if the defendant had an adequate
opportunity to cross-examine,” and declaring the Court’s subsequent cases to be consistent
with this approach); Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (“Generally speaking, the
Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever extent, the defense might
wish.”); Ohio v. Roberts, 448 U.S. 56, 73 n.12 (1980) (“We hold that in all but such
extraordinary cases [as those in which defense counsel provided ineffective representation at
the proceeding where the testimony was elicited], no inquiry into [the] ‘effectiveness’ [of cross-
examination] is required.”), abrogated on other grounds by Crawford, 541 U.S. at 68–69.
7 Compare United States v. Jimenez, 464 F.3d 555, 561–62 (5th Cir. 2006) (holding
that the district court violated the Confrontation Clause by preventing defense counsel from
cross-examining a police officer about the location from which he allegedly observed the
8
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Correspondingly, this Court has rejected a Sixth Amendment claim
premised on “inadequate” cross-examination at a prior proceeding by “different
counsel with a different defense theory.” United States v. Amaya, 533 F.2d 188,
191–92 (5th Cir. 1976). In Amaya, the defendant was convicted of conspiracy to
distribute heroin, based in part on the detailed trial testimony of a government
witness. Id. at 190. This Court reversed the conviction and granted a new trial
based on an impermissible Allen charge. Id. Between the first and second trials,
the government witness suffered an injury that resulted in a loss of memory
regarding his prior testimony. Id. Over the defendant’s confrontation objection,
the district court admitted the witness’s prior testimony in the second trial. Id.
Before this Court, the defendant argued that “he did not have adequate cross-
examination of the witness at the prior trial” because, inter alia, “different
counsel with a different defense theory conducted the cross-examination at the
first trial.” Id. at 191. This Court rejected the defendant’s theory, remarking
that neither the Federal Rules of Evidence nor our case law “condition the use
of prior testimony on representation by the same counsel at both trials.” Amaya,
533 F.2d at 191–92. Rather, this Court declared, “[a]dequate opportunity for
cross-examination by competent counsel is sufficient.” Id. at 192.
Although Amaya predates the Supreme Court’s watershed decision in
Crawford, the Court in Crawford did not purport to set forth new standards
governing the effectiveness of cross-examination. To the contrary, the Court
reaffirmed its precedents holding that “an adequate opportunity to cross-
defendant selling narcotics), with United States v. McCullough, 631 F.3d 783, 791 (5th Cir.
2011) (finding no violation of the Confrontation Clause when defense counsel was permitted
to question a prosecution witness “about numerous issues that implicated both his motivation
to lie and his previous history of dishonesty and untruthful behavior” and was barred only
from adducing cumulative evidence of the witness’s untruthfulness and of the specifics of
prior crimes excluded under Federal Rule of Evidence 403). Although these cases address
limitations on the scope of cross-examination, they shed light on the standards by which the
adequacy of cross-examination may be judged.
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examine” a now-unavailable witness would satisfy the Confrontation Clause.
See Crawford, 541 U.S. at 57 (citing, inter alia, Mancusi v. Stubbs, 408 U.S.
204, 213–16 (1972); California v. Green, 399 U.S. 149, 165–68 (1970); Pointer
v. Texas, 380 U.S. 400, 406–08 (1965); Mattox v. United States, 156 U.S. 237,
244 (1895)). 8
Richardson contends that Neville “was not subject to the cross-
examination secured by” the Confrontation Clause because his testimony was
taken in violation of Richardson’s constitutional right of self-representation.
He also asserts that Moore, his counsel at the first trial, did not properly cross-
examine Neville. The Government responds that the Confrontation Clause
“only guarantees an opportunity for effective cross-examination”—a standard
that Moore satisfied by “effectively and thoroughly” questioning Neville about
his cooperation with law enforcement and his motives to lie.
We agree with the Government. As explained above, the relevant case
law speaks in terms of an “adequate” or “effective” “opportunity” for cross-
8 We observe that, of the cases cited in Crawford, the Court found an inadequate
opportunity for cross-examination only in Pointer v. Texas, 380 U.S. 400, 407–08 (1965).
There, the declarant testified at a preliminary hearing, and although the defendant was
present for the hearing, he was unrepresented by counsel and did not attempt to cross-
examine the declarant. Id. at 401. The preliminary-hearing testimony was then admitted at
the defendant’s criminal trial over the defendant’s objection. Id. at 401–02. The Court
declared the admission of this testimony unconstitutional, reasoning that the declarant’s
statement “had not been taken at a time and under circumstances affording petitioner
through counsel an adequate opportunity to cross-examine.” Id. at 407; cf. Mancusi v. Stubbs,
408 U.S. 204, 213–16 (1972) (finding “an adequate opportunity” for cross-examination of a
witness at the defendant’s first trial, despite the vacatur of the conviction for ineffective
assistance of counsel, because the defendant “was represented by counsel who could and did
effectively cross-examine prosecution witnesses,” and the defendant could not “show any new
and significantly material line of cross-examination that was not at least touched upon in the
first trial”); California v. Green, 399 U.S. 149, 165–68 (1970) (finding no Confrontation Clause
violation where the defendant, through counsel, “had every opportunity to cross-examine”
the declarant at a preliminary hearing and, indeed, “[did] not appear to have been
significantly limited in any way in the scope or nature of his cross-examination”); Mattox, 156
U.S. at 244 (finding no Confrontation Clause violation where the declarants “were fully
examined and cross-examined on the former trial”).
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examination, and it recognizes that there are constitutionally permissible
limits on the scope of cross-examination. Richardson has not shown that he
lacked such an opportunity. 9
Critically, the transcript of Neville’s cross-examination shows that
Moore questioned Neville in detail about his motive to cooperate with law
enforcement; his arrests and convictions for family violence, theft, and
possession of narcotics and firearms; his relationship with Richardson; and the
contours of his trial testimony. Even accepting Richardson’s argument that
Moore failed to press Neville on his employment and his narcotics use, we
cannot say that Moore’s cross-examination failed to provide the jury with
constitutionally “sufficient information to appraise the bias and motives of the
witness,” Tansley, 986 F.2d at 886. Nor, for that matter, can we say that
Richardson’s proposed questions constitute a “new and significantly material
line of cross-examination that was not at least touched upon in the first trial,”
Mancusi, 408 U.S. at 215 (emphases added). As the district court wrote in its
ruling on the motion in limine, “the opportunity to cross-examine Neville, while
admittedly not exactly as the defendant wishes it had been, was adequate and
meaningful under the law.”
Further, Richardson does not claim that Moore’s assistance was per se
ineffective. In fact, he made conflicting statements to the district court regarding
9 Richardson presents no authority in support of a per se rule of inadmissibility when
the declarant’s prior testimony was elicited in violation of the defendant’s Sixth Amendment
right of self-representation. It appears that no such authority exists. We note that a
categorical approach could severely disadvantage the Government in criminal prosecutions
and could lead to perverse results (e.g., effective cross-examination deemed constitutionally
infirm because the defendant wished to represent himself and argue a theory grounded in
inadmissible evidence). Cf. Mancusi, 408 U.S. at 215–16 (observing that a missed line of
questioning at the defendant’s first trial did not render the defendant’s opportunity for cross-
examination inadequate because the testimony “could not have prejudiced [the defendant’s]
case as to any issue that the jury was authorized to deliberate under the trial judge’s charge”).
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the quality of Moore’s representation. 10 To the extent Richardson’s complaint
can be construed as one regarding trial strategy, it is foreclosed by Supreme
Court and Fifth Circuit precedent. See Crawford, 541 U.S. at 57–59; Roberts,
448 U.S. at 73 n.12; Amaya, 533 F.2d at 191–92.
For these reasons, we find no violation of the Confrontation Clause.
B. The Motion for Mistrial
Richardson next asserts that the district court erred in denying his motion
for mistrial based on Detective Sergeant Chambers’s inadmissible testimony.
We review the denial of a motion for mistrial founded on the admission
of prejudicial evidence for abuse of discretion. United States v. Paul, 142 F.3d
836, 844 (5th Cir. 1998). Under this standard, “a new trial is required only if
there is a significant possibility that the prejudicial evidence had a substantial
impact upon the jury verdict, viewed in light of the entire record.” Id. “We give
great weight to the trial court’s assessment of the prejudicial effect of the
evidence,” and we examine the context of the disputed statement to ascertain
its source—namely, whether it was elicited by the Government or
spontaneously volunteered by the witness. United States v. Valles, 484 F.3d
745, 756 (5th Cir. 2007) (per curiam). Further, “prejudice may be rendered
harmless by a curative instruction.” Id. Indeed, “[t]his Court has consistently
held that an erroneous admission of evidence may be cured by such a limiting
instruction because jurors are presumed to follow the court’s instructions.”
10 At the hearing on his motion in limine, Richardson stated: “I’m not suggesting that Mr.
Moore was ineffective in the sense that he doesn’t know anything about the law or trial strategy.
I’m suggesting that Mr. Moore was not adequately prepared and he was ineffective in the sense
that I told him not to do anything on my case.” Later in the hearing, he said: “Mr. Moore and I
had . . . a disagreement . . . [regarding] what defense strategy best advance[d] my cause. And
when it came to cross examining Mr. Nevil[le], I had information that I personally knew about
that Mr. Moore was unfamiliar with. I hadn’t discussed it with him.” Yet later, he explained: “I
am not suggesting Mr. Moore was . . . ineffective as a lawyer. I believe he’s an excellent attorney.
This was by my choice.”
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Paul, 142 F.3d at 844. There is, however, an exception for testimony that is “so
highly prejudicial as to be incurable by the trial court’s admonition.” United
States v. Ramirez–Velasquez, 322 F.3d 868, 878 (5th Cir. 2003) (internal
quotation marks omitted). Only testimony “likely to have a substantial impact
on the jury’s verdict” will meet this threshold. Id.
Richardson identified three inadmissible statements from Chambers’s
testimony in his motion for mistrial: (1) that Richardson stated at the time of
his arrest that he was working as an informant for the DEA; (2) that Neville
claimed to have met Richardson while the two were working as informants in
New Orleans; and (3) that narcotics other than those listed in the indictment
were discovered inside of Just 4 U Fashion. According to Richardson, the
Government failed to apprise him of the first two statements before trial, and
the allusion to uncharged narcotics was incurably prejudicial. All three
statements, he says, are “so inflammatory that the [curative] instructions were
insufficient to cure” the harm.
1. The References to Richardson’s Alleged Work as an Informant
Richardson claims that because Neville was the sole firsthand witness
to the narcotics transaction, his defense rested principally on the successful
impeachment of Neville’s credibility. He maintains that he intended to
impeach Neville through evidence that Neville was “a drug abuser and/or
dealer” whose murder was connected to narcotics, as well as through evidence
that Neville was “a paid informant whose testimony was inherently
unreliable.” Accordingly, Chambers’s testimony casting Richardson as an
informant was “severely prejudicial” to Richardson’s strategy, and the
Government’s failure to disclose Richardson’s and Neville’s statements before
trial hampered Richardson’s ability to form a defense. The Government
counters that Chambers’s testimony “merely explained an alleged fact of which
the jury was already well aware”—Richardson’s alleged affiliation with the
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DEA. It also stresses that Richardson failed to rebut the presumption that any
resulting prejudice was alleviated by the district court’s curative instructions.
We agree with the Government. For several reasons, Chambers’s
testimony regarding Richardson’s alleged work as an informant was not so
prejudicial as to warrant a mistrial. First, the Government did not deliberately
elicit the contested testimony. The testimony regarding Richardson’s
statement upon his arrest was elicited by the Government on direct
examination, but it appears to have been unintentional: “Q. Okay. And did Mr.
Richardson make any statements to you regarding his second arrest? A. He
was claiming that we planted the drugs on him. Q. Did he say anything about
being out on bond or anything like that? A. He advised that he is an informant
for DEA . . . .” In comparison, the testimony concerning Neville’s statement
was elicited by Richardson himself during cross-examination: “Q. . . . What did
the informant tell you about our relationship? A. He said he knew you from
being informants in New Orleans together.” In neither case can the
Government be faulted for the circumstances surrounding Chambers’s
remarks. See Valles, 484 F.3d at 756.
Second, Richardson timely objected to each statement, and the district
court gave adequate curative instructions. See id. In fact, the judge gave a total
of three sets of curative instructions: one set at the time of the testimony to
address Neville’s specific objections, one set at the end of the first day of trial
explicitly directed to Chambers’s statements, and one set at the close of trial
in reference to evidence previously ruled inadmissible. Richardson has
presented no evidence to rebut the presumption that the jury heeded the
district court’s curative instructions, see Paul, 142 F.3d at 844, nor has he cited
any cases to support his characterization of the evidence as irredeemably
inflammatory, see Ramirez–Velasquez, 322 F.3d at 878.
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In fact, Richardson stands on shaky ground when he paints his ability to
tar Neville’s credibility through evidence of his informant activities as the
linchpin of his defense. Contrary to Richardson’s position, the Government
presented evidence other than Neville’s testimony that tended to prove
Richardson’s participation in narcotics trafficking. For instance, the
Government offered testimony concerning the recovery of the prerecorded buy
money from Richardson’s person, the officers’ observations of Richardson’s
interaction with Neville, and suspected narcotics sales at Just 4 U Fashion.
Moreover, Richardson was apparently undeterred from impeaching Neville’s
credibility by reference to his financial motive to serve as an informant for the
East Baton Rouge Sheriff’s Office: He cross-examined Deputy Sheriff Joseph
Lochridge about Neville’s “motivation . . . for coming forward with this
information” and elicited the response, “He wanted to get paid.”
Finally, the essence of the testimony was not new to Richardson. Neville
had testified on cross-examination at the first trial that “Almond himself was
a CI, . . . and he already probably had the notion of what I was doing because
that’s what I was set out to do when I first met him.” This fact not only
undermines Richardson’s claim of unfair surprise, but also mitigates the
impact of Chambers’s statements given that Neville’s prior testimony was read
to the jury in the second trial. Cf. Valles, 484 F.3d at 756 (“[The inadmissible
testimony] only tended to confirm what was already known . . . .”).
In view of the above, we hold that Chambers’s statements regarding
Richardson’s alleged informant activity were not so prejudicial as to nullify the
district court’s curative instructions.
2. The Reference to Uncharged Narcotics
Richardson next argues that Chambers’s allusion to uncharged narcotics
was incurably prejudicial. He also contends that the district court unfairly
faulted him for failing to object earlier—either in his first appeal or in a motion
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to suppress—despite the Sixth Amendment violation in the first trial and the
court’s refusal to entertain any additional motions to suppress in the second
trial. The Government reiterates its view that the court’s instructions
presumptively cured any harm.
We again agree with the Government. Though the Government elicited
the contested testimony on direct examination by asking Chambers to identify
the items found in a bag seized from Just 4 U Fashion, it immediately pointed
out that Richardson had not been charged with possession of narcotics other
than ecstasy and marijuana and emphasized that “we are only interested in
those items that pertain to this indictment.” And as with the other
objectionable testimony, the district court gave the jury both a specific
instruction to disregard at the end of the first day of trial, and a general
instruction to disregard at the close of trial.
As before, Richardson fails to adduce any evidence that the district court’s
cautionary instructions were inadequate to cure the prejudice. A single
extraneous reference to “one Lortab . . . and some unknown pill,” followed by an
explicit instruction to disregard, was not so prejudicial in the context of all other
evidence that it created a “significant possibility” of a “substantial impact” on
the jury’s verdict, see Paul, 142 F.3d at 844; cf. United States v. Delgado, 672
F.3d 320, 340 (5th Cir. 2012) (en banc) (affirming the denial of a motion for
mistrial based on alleged extraneous-offense evidence because the testimony in
question “did little more than repeat a fact of which the jury was already well
aware” and “any prejudice was mitigated by the district court’s prompt and
thorough curative instruction”).
Richardson’s claim of unfairness in the district court’s ruling concerning
the uncharged narcotics is unavailing as well. Contrary to Richardson’s
assertion that the district court effectively erected an unjust procedural bar to
objection, the district court simply observed that Richardson had neither raised
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the claimed Federal Rule of Evidence 404(b) error on appeal nor objected to the
evidence before the second trial. It is true that Richardson was represented by
counsel against his will when the Rule 404(b) issue arose in his first trial, but
this does not excuse his failure to raise any corresponding error in his first
appeal or, more importantly, his failure to object before the second trial. And
while Richardson claims that the district court “had previously informed [him]
that it would not entertain any additional motions to suppress,” the record is
actually ambiguous on this point:
The Court: . . . And you understand we are not going to go through
any Franks hearings, any motions to suppress. All of that has been
ruled on by the Fifth Circuit and the court has been affirmed. The
Fifth Circuit says those rulings will control the retrial of this case;
you understand that?
The Defendant: Yes, sir. Even in the event of any newly discovered
evidence?
The Court: The motions, the rulings on those motions will control
in this case. And I am not going to let—I’m not going to retry
motions to suppress.
Even construing the district court’s statements in the light most favorable to
Richardson, the court’s ruling would have no impact on Richardson’s obligation
to respond to the Government’s Rule 404(b) notices.
In sum, deferring to the district court’s assessment of the prejudicial
effect of the challenged evidence and affording due regard for the impact of the
court’s repeated curative instructions, we hold that the district court did not
abuse its discretion in denying Richardson’s motion for mistrial.
C. The Career-Offender Enhancement
Lastly, Richardson argues that the district court erroneously sentenced
him as a career offender under U.S.S.G. § 4B1.1 because one of his predicate
convictions—a 1999 conviction for armed robbery—was the product of an
involuntary guilty plea.
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For preserved error, we review a district court’s application of the
Guidelines de novo and its factual findings for clear error. United States v. Ruiz,
621 F.3d 390, 394 (5th Cir. 2010) (per curiam). The proponent of an adjustment
to the defendant’s sentence level “must establish the factual predicate justifying
the adjustment . . . by a preponderance of the relevant and sufficiently reliable
evidence.” United States v. Alfaro, 919 F.2d 962, 965 (5th Cir. 1990). However,
“[t]he burden of proving the constitutional invalidity of a prior conviction rests
on the defendant.” United States v. Howard, 991 F.2d 195, 199 (5th Cir. 1993).
Richardson objected to the PSR’s career-offender sentence enhancement
in both his first and second sentencing proceedings, but on different grounds.
At his first sentencing, Richardson contended that there were no records of the
armed-robbery arrest or plea agreement. At his second sentencing, Richardson
contended that his guilty plea was involuntary, as his attorney had accepted
the plea in his absence and had later advised him not to “make any protests
about it.” In both cases, the probation office disagreed with Richardson’s
objections and cited state-court records confirming the validity of the
conviction, and the district court adopted the PSRs. 11 Richardson did not raise
any error relating to his sentence in his first appeal. See supra note 3.
Richardson argues that the state-court records that could corroborate his
claims were presumptively destroyed in Hurricane Katrina, such that he
cannot discharge his burden of establishing the constitutional infirmity of his
conviction. He submits, without authority, that this Court should recognize an
“act of God” exception to the ordinary allocation of burdens of proof.
We find Richardson’s arguments unpersuasive. The probation office
rebutted Richardson’s objection in its Supplemental Addendum to the PSR,
11 Richardson claims to have perfected an appeal of the armed-robbery conviction, but
he does not provide any citation or record in support.
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noting that it had obtained “a charging instrument, waiver of rights form,
electronic sentencing minutes, and Louisiana Department of Public Safety and
Corrections documents” that belied Richardson’s claims. Although there is
some ambiguity in the record as to which documents the district court had
before it when ruling on Richardson’s objection, any of the records presented
by the Government would tend to prove that Richardson personally appeared
in court and entered a valid guilty plea. See supra note 4. Richardson has
presented no competent evidence to the contrary (e.g., an affidavit by
Richardson or by his attorney at the plea hearing), so even were we to apply
the “act of God” exception Richardson advocates, we would reach the same
result. In light of the Government’s evidence, we hold that district court
committed no reversible error in ruling the predicate conviction valid.
III. CONCLUSION
For the foregoing reasons, we affirm Richardson’s conviction and
sentence.
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