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


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  •     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
    .
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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”).
    10
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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
    .
    14
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    No. 13-31190
    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
    15
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    No. 13-31190
    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
    16
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    No. 13-31190
    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.
    17
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    No. 13-31190
    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.
    18
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    No. 13-31190
    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.
    19