United States v. Richardson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4058
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HENRY PAUL RICHARDSON, a/k/a Packer,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:06-cr-00106-HEH)
Submitted: April 9, 2008 Decided: May 9, 2008
Before WILKINSON and MOTZ, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. James Roos, III, LAW OFFICES OF J. JAMES ROOS, III, Towson,
Maryland, for Appellant. Chuck Rosenberg, United States Attorney,
Roderick C. Young, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Henry Paul Richardson appeals his convictions following
a jury trial for conspiracy to distribute heroin, in violation of
21 U.S.C. § 846 (2000) (Count One); possession of a firearm in
furtherance of a drug trafficking offense, in violation of 18
U.S.C. § 924(c) (2000) (Count Two); and possession of a firearm in
furtherance of a drug trafficking offense causing the death of
another, in violation of 18 U.S.C. § 924(j) (2000) (Count Three).
Finding no reversible error, we affirm.
I. Sufficiency of the Evidence
Richardson first contends there was insufficient evidence
to support his convictions. This court reviews de novo the
district court’s decision to deny a motion for judgment of
acquittal pursuant to Fed. R. Crim. P. 29. United States v.
Osborne, 514 F.3d 377, 385 (4th Cir. 2008). Where, as here, the
motion was based on a claim of insufficient evidence, “[t]he
verdict of the jury must be sustained if there is substantial
evidence, taking the view most favorable to the Government, to
support it.” Glasser v. United States, 315 U.S. 60, 80 (1942);
Osborne, 514 F.3d at 385. Substantial evidence is evidence “that
a reasonable finder of fact could accept as adequate and sufficient
to support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)
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(en banc). This court considers circumstantial and direct
evidence, and allows the government the benefit of all reasonable
inferences from the facts proven to those sought to be established.
Id. at 858; United States v. Tresvant, 677 F.2d 1018, 1021 (4th
Cir. 1982).
In resolving issues of substantial evidence, this court
does not weigh evidence or review witness credibility. United
States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989). Rather, it is
the role of the jury to judge the credibility of witnesses, resolve
conflicts in testimony, and weigh the evidence. United States v.
Manbeck, 744 F.2d 360, 392 (4th Cir. 1984).
First, as to Richardson’s conspiracy conviction, “[t]o
establish a § 846 violation, the government would have to prove (1)
that [Richardson] entered into an agreement with one or more
persons to engage in conduct that violated 21 U.S.C. §[] 841(a)(1)
. . .; (2) that [he] had knowledge of that conspiracy; and (3) that
[he] knowingly and voluntarily participated in the conspiracy.”
United States v. Mastrapa, 509 F.3d 652, 657 (4th Cir. 2007);
Burgos, 94 F.3d at 857. Testimony at trial disclosed that
Richardson began selling heroin in the Gilpin Court area of
Richmond, Virginia in the summer of 2005. He had a lieutenant who
controlled the flow of traffic where he sold drugs, in his second
floor apartment on St. John Street, and acted as a lookout for
police. Ricky Scott testified he would sometimes make purchases
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directly from Richardson; other times Richardson had runners to
complete the transactions. Henry Williams testified that in
addition to purchasing heroin from Richardson, he distributed
heroin for Richardson in exchange for money or heroin. In
addition, Williams testified that he brought customers to
Richardson to purchase heroin. Williams cooperated with the FBI
and completed a controlled buy of heroin from Richardson, which was
captured on audio and video recording and played for the jury.
After Richardson was arrested, a search of his vehicle recovered
7.1 grams of heroin. We find there was substantial evidence to
support the conviction for conspiracy to distribute heroin.
Turning next to Richardson’s firearm convictions, a
violation of § 924(c)(1) requires proof the defendant used or
carried a firearm during and in relation to a drug trafficking
crime or possessed a firearm in furtherance of a drug trafficking
crime. United States v. Lipford, 203 F.3d 259, 265-66 (4th Cir.
2000) (noting elements under § 924(c) statute for use or carry).
Proof of the underlying crime is necessary to convict under
§ 924(c). United States v. Hopkins, 310 F.3d 145, 153 (4th Cir.
2002). It is sufficient to establish that the purpose of the
firearm was to “protect or embolden” the defendant. United States
v. Sullivan, 455 F.3d 248, 260 (4th Cir. 2006). Even without
evidence of brandishing or firing of a weapon, the carrying of a
firearm during a drug trafficking crime supports the jury’s finding
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that a defendant carried it for his personal protection, thus
satisfying the applicable standard. Id.Under § 924(j)(1), Richardson’s third count of
conviction, “[a] person who, in the course of a violation of
[§ 924(c)], causes the death of a person through the use of a
firearm, shall . . . if the killing is murder (as defined in
section 1111) be punished by death or by imprisonment for any term
of years or for life.” 18 U.S.C. 924(j)(1) (2000). The jury found
the killing committed by Richardson in the course of the § 924(c)
violation was a murder as defined by 18 U.S.C. § 1111 (2000).
Richardson first argues that because there was
insufficient evidence to establish the underlying conspiracy to
distribute heroin offense, there is insufficient evidence to
support that he possessed a firearm in furtherance of that crime.
Because we find there was sufficient evidence to support the
conspiracy conviction, Richardson’s claim fails.
We find there was ample evidence at trial to support
Richardson’s convictions for possession of a firearm in furtherance
of drug trafficking and possession of a firearm in furtherance of
drug trafficking causing death. Sylvester Washington and Henry
Williams testified that Richardson carried a firearm during their
drug transactions with him. Ricky Scott testified that on the
night of February 14, 2006, he witnessed Richardson, carrying an
AK-47, get into a van with other individuals Scott did not know.
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Sylvester Washington testified that on that same night, he was
standing with Freeman Brown on the corner of St. Paul and Coutts
Streets in Richmond, Virginia, when a van stopped and Richardson
exited the van with an AK-47. Washington testified Richardson
opened fire as Washington ran away. Washington was shot several
times and fell to the ground. Washington survived, but was
seriously injured. Freeman Brown was killed. At the scene,
forensic detectives recovered 29 cartridge cases from two different
AK-47 weapons. To the extent Richardson attempts to undermine the
strength of this evidence by challenging witness credibility, this
court does not weigh evidence or substitute its view of witness
credibility for determinations made by the jury. See Saunders, 886
F.2d at 60.
II. Admission of Evidence
Richardson next argues that the district court erred in
admitting drug evidence seized from the third search of his vehicle
by law enforcement officials eighteen days after his arrest while
the vehicle was impounded. Richardson did not file a motion to
suppress evidence prior to trial.
Rule 12(b)(3) of the Federal Rules of Criminal Procedure
requires motions to suppress evidence be made before trial. United
States v. Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997). Failure to
make a motion to suppress before trial constitutes waiver unless
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the trial court grants relief from the waiver under Rule 12(e) for
cause shown. Fed. R. Crim. P. 12(e); United States v. Ricco, 52
F.3d 58, 62 (4th Cir. 1995). Richardson therefore must show cause
for his failure to file a pretrial motion to suppress. Because
Richardson failed to raise the issue of suppression based on
invalid search prior to or during trial, and he does not allege
cause for his failure to do so, we find he has waived his right to
raise the issue on appeal.
III. Constructive Amendment
Richardson’s final argument on appeal is that the
district court constructively amended Count One of the indictment,
which charged conspiracy to distribute heroin, by instructing the
jury that the agreement could be to distribute or possess with
intent to distribute heroin, although Richardson had not been
charged with possession with intent to distribute.
Constructive amendments are error per se and “must be
corrected on appeal even when not preserved by objection.” United
States v. Floresca, 38 F.3d 706, 714 (4th Cir. 1994).* A
constructive amendment broadens the bases for conviction beyond
those charged in the indictment. United States v. Randall, 171
F.3d 195, 203 (4th Cir. 1999). It occurs when “the indictment is
*
Richardson failed to raise the issue of constructive
amendment in the district court.
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altered ‘to change the elements of the offense charged, such that
the defendant is actually convicted of a crime other than that
charged in the indictment.’” Id. (quoting United States v.
Schnabel, 939 F.2d 197, 203 (4th Cir. 1991)).
We find Richardson, as a conspirator, is criminally
responsible for all parts of the conspiracy--possession with intent
to distribute as well as distribution--and thus he was not
prejudiced by the court’s instruction to the jury that the
conspiratorial agreement could be to distribute or possess with
intent to distribute heroin. See United States v. Diaz, 190 F.3d
1247, 1253 (11th Cir. 1999) (“In a conspiracy . . . neither actual
possession nor actual distribution is a necessary element of the
crime. Only an agreement is necessary. A fundamental precept of
the law of conspiracy converts any distinction between conspiracies
to commit these two crimes into a non-issue: each conspirator is
criminally responsible for all parts of the conspiracy.”).
Therefore, the district court did not impermissibly broaden the
charges such that Richardson was convicted of a crime other than
that charged.
Accordingly, we deny Richardson’s motion to file a pro se
supplemental brief and affirm the district court’s judgment. We
dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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