United States v. Richardson ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 20, 2003
Charles R. Fulbruge III
Clerk
No. 02-30764
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALLEN RICHARDSON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 01-CR-235-ALL-N
--------------------
Before DEMOSS, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Allen Richardson appeals his jury conviction of knowingly
possessing with intent to distribute 50 grams or more of crack
cocaine. Richardson argues that his federal prosecution violated
the double-jeopardy bar against multiple prosecutions because the
state prosecution against him was a sham.
Double-jeopardy protection did not attach because no jury
was empaneled in the state-court proceedings. See United States
v. Juarez-Fierro, 935 F.2d 672, 675 (5th Cir. 1991). Moreover,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-30764
-2-
Richardson did not show that his case fell within the “sham
prosecution” exception to the “dual sovereignty” rule because he
did not bear his burden of proving that the state prosecution was
merely the tool of the federal Government. See United States v.
Logan, 949 F.2d 1370, 1379 n.16 (5th Cir. 1991).
Richardson also argues that the district court erred in
ruling that the identities of the confidential informants (CIs)
need not be revealed. The first step of our three-step test
weighs in favor of nondisclosure because the CIs’ involvement in
the transaction was minimal. See United States v. Orozco, 982
F.2d 152, 154-55 (5th Cir. 1993). The second step also weighs in
favor of nondisclosure because Richardson did not show that the
CIs’ information would significantly aid him in establishing an
asserted defense. See id. at 155. Because two prongs of this
circuit’s test support the district court’s determination that
disclosure was not warranted, the district court did not abuse
its discretion. See United States v. Cooper, 949 F.2d 737, 749-
50 (5th Cir. 1991).
Richardson also argues that the district court abused its
discretion in admitting the CIs’ hearsay testimony because the
crucial issue at trial was whether Richardson intended to possess
crack cocaine. Arguably, the testimony in question points
directly at Richardson’s guilt in the crime and therefore is
inadmissible hearsay. See United States v. Evans, 950 F.2d 187,
191 (5th Cir. 1991). However, reversal is not appropriate
No. 02-30764
-3-
because the inadmissible evidence did not have a substantial
impact on the jury’s verdict, given the evidence before the jury
and the court’s instruction to the jury regarding the hearsay
statement. Id.Richardson also argues that the Government’s expert
witness’s testimony that the amount of cocaine discovered in his
car was consistent only with an intent to distribute was
inadmissible and an impermissible use of profile evidence. The
expert witness’s testimony is accurately characterized “as an
analysis of the evidence in the light of his special knowledge as
an expert in the area of narcotics trafficking,” and the district
court did not abuse its discretion in admitting his testimony.
See United States v. Speer, 30 F.3d 605, 610 (5th Cir. 1994).
Nor was the witness’s testimony an impermissible use of
“profile” evidence because the witness merely explained the
meaning of the physical evidence and did not address the issue of
identity. See id. at 610 n.3.
Richardson further contends that that witness’s credentials
did not qualify him as an expert. The witness had over 27 years
of experience as a federal agent and had been involved in
approximately 1000 narcotics investigations, which made him
familiar with the conduct and methods of operation unique to the
drug-distribution business. The Government properly qualified
the witness as an expert by questioning him and eliciting
No. 02-30764
-4-
responses as to his experience and qualifications. See United
States v. Buchanan, 70 F.3d 818, 832 n.17 (5th Cir. 1996).
Richardson also argues that his right to compulsory process
was denied because of his inability to call the cocaine broker as
a witness because she invoked her right against self-
incrimination. The record reflects that the broker was available
as a witness but that Richardson chose not to put her on the
stand in front of the jury because she had been told by her
counsel to invoke her Fifth Amendment privilege in response to
any questioning by the Government. Thus, Richardson’s compulsory
process rights were not violated, and Richardson’s argument
fails. See United States v. Griffin, 66 F.3d 68, 70 (5th Cir.
1995).
Richardson also argues that the district court erred in
denying his mistrial motion made after the Government referred to
Richardson as a “drug dealer” during closing arguments because
there was no evidence that Richardson ever had sold drugs and was
not accused of distribution. The prosecutor’s remark was not
improper because evidence was admitted at trial from which the
prosecutor could fairly draw the inference that Richardson was a
drug dealer, and the district court did not abuse its discretion
in denying Richardson’s mistrial motion. See United States v.
Martinez, 616 F.2d 185, 187 (5th Cir. 1980)(per curiam).
Richardson also argues that the district court erred in
instructing the jury that the Government only had to prove that
No. 02-30764
-5-
Richardson specifically intended to possess a controlled
substance and not specifically crack cocaine. Richardson’s
argument fails because the district court’s instruction
explaining that the jury need only find that Richardson possessed
a controlled substance correctly stated the law. See United
States v. Cartwright, 6 F.3d 294, 303 (5th Cir. 1993).
Richardson also argues that the district court should have
given an entrapment instruction because the Government had no
proof of Richardson’s criminal disposition. Richardson does not
argue that the Government induced him to commit the crime, and
the district court did not abuse its discretion in refusing to
give the requested instruction because there was not sufficient
evidence reasonably to find in favor of the defendant thereon.
See United States v. Barnett, 197 F.3d 138, 142 (5th Cir. 1999).
Richardson also argues that the evidence was insufficient as
a matter of law to prove beyond a reasonable doubt that he
specifically intended to possess cocaine base. The record
reveals that the CIs tipped the Drug Enforcement Administration
task force that a black male driving a black Maxima with a
certain license plate would arrive at the Park Royal apartments
to pick up cocaine. An agent observed Richardson, who was
driving the car in question, arrive at the apartments, get out of
his car empty-handed, go into the apartment complex, and return
carrying a bag. When marked police cars tried to pull Richardson
over, Richardson fled, first in his car and then on foot. The
No. 02-30764
-6-
officers found $4,861 in cash, with $4,000 bundled into $1,000
bundles, and 123 grams of crack cocaine.
The Government’s expert witness explained that possessing
123 grams of cocaine base was consistent with distribution
purposes and that the existence of four $1,000 bundles was
consistent with the sale of cocaine base for a price within the
market price range at the time Richardson was arrested. No
paraphernalia, such as crack pipes, were found to suggest that he
possessed the cocaine for his own use. Thus, considering all of
the evidence in the light most favorable to the Government,
including all reasonable inferences that can be drawn from the
evidence, a reasonable trier of fact could have found that the
evidence established all three elements of the crime beyond a
reasonable doubt. See United States v. Bermea, 30 F.3d 1539,
1551 (5th Cir. 1994).
All of Richardson’s arguments on appeal lack merit.
Consequently, Richardson’s argument that cumulative error
requires a remand fails. The district court’s judgment is
AFFIRMED.