United States v. LaSamuel Richardson, III ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-2741
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United States of America
Plaintiff - Appellee
v.
LaSamuel Richardson, III
Defendant - Appellant
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Appeal from United States District Court
for the District of North Dakota - Eastern
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Submitted: June 15, 2022
Filed: July 21, 2022
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Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
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GRUENDER, Circuit Judge.
LaSamuel Richardson, III was convicted of possession of a firearm by a felon
in violation of 18 U.S.C. § 922(g)(1). He appeals the district court’s1 denial of his
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The Honorable Peter D. Welte, Chief Judge, United States District Court for
the District of North Dakota, adopting the Report and Recommendation of the
Honorable Alice R. Senechal, United States Magistrate Judge for the District of
North Dakota, with respect to the motion to suppress.
motion to suppress, two additional evidentiary rulings, and the application of a
sentencing enhancement under U.S.S.G. § 2K2.1(a)(3). We affirm.
I.
On January 4, 2019, soon after 7:00 a.m., Angela Holtgard reported to the
police that a white male was masturbating in a silver SUV outside of her house in
Fargo, North Dakota. A police officer responded but was unable to locate the car.
Holtgard provided the police with a video from her surveillance cameras of the
incident.
On January 7, Holtgard’s next-door neighbor, Kari Teschendorf, reported to
the police that she saw a silver SUV parked in front of Holtgard’s house.
Teschendorf thought it was the same car that had been in front of Holtgard’s house
a few days earlier. Teschendorf told the police that she thought the driver might be
a black male, and she gave the police the license plate number. The car was a gold
Honda CR-V registered to a white male, Richardson’s uncle, in Williston, North
Dakota.
Detective Paul Simonson searched the car’s license plate number in the North
Dakota Sex Offender Registry and learned that Richardson had identified the gold
Honda CR-V as his primary car when he registered with the police department in
Williston, North Dakota, where he lived. Richardson was listed on the sex-offender
registry because of a past conviction for indecent exposure. Although Detective
Simonson knew Richardson is black based on past interactions with him, Detective
Simonson testified that Holtgard’s statement that the suspect was white did not
negate his suspicion of Richardson because Richardson “has a pretty light
complexion to begin with” and bright lights make it more difficult to discern colors
when it is dark.
Having identified Richardson as a suspect, Detective Simonson contacted
Richardson’s probation officer who said that Richardson had been granted
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permission to travel to Fargo and was monitored by GPS. The probation officer told
Detective Simonson that, according to the GPS data, Richardson was at Holtgard’s
address on January 4, 2019 around 7:00 a.m. and was also near her house on January
7, 2019 at the time Teschendorf reported seeing the car.
Next, Detective Simonson asked the probation officer for Richardson’s
current location. Detective Simonson drove to Richardson’s current location, a
parking lot, and recognized him in the gold CR-V. Detective Simonson observed
Richardson drive to another parking lot, exit the car, and enter a black car driven by
Ariel Jackson. Detective Simonson also observed the black car drive away, and at
Detective Simonson’s request, a patrol officer initiated a traffic stop of Jackson’s car
as it pulled into a gas station parking lot. Then, Detective Simonson arrested
Richardson for indecent exposure. After arresting Richardson, Detective Simonson
searched Richardson’s person and found a pistol magazine that contained
ammunition in his jacket pocket.
While Richardson was being transported to the jail, Detective Simonson
notified Richardson’s probation officer of the ammunition, and they decided to
conduct a probationary search of the CR-V. In it they found an AR-15 rifle.
Jackson’s car was not searched at the time of Richardson’s arrest, but she later
testified that when the police stopped her car, Richardson hid a handgun underneath
the front passenger-side seat. Jackson turned the handgun over to the authorities.
Richardson was indicted for possession of a firearm by a felon in violation of
18 U.S.C. § 922(g)(1). He moved to suppress all evidence seized during the search
of his person and the CR-V following his arrest for indecent exposure. The district
court denied the motion to suppress.
Before trial, the Government filed two motions in limine. First, the
Government sought to admit as intrinsic evidence the events leading up to
Richardson’s arrest, including evidence about Richardson masturbating in front of
Holtgard’s house, his sex-offender status, and his probation status. Second, the
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Government sought to introduce evidence of Richardson’s six prior felony
convictions. The district court granted both motions over Richardson’s objections.
At trial, the Government played Holtgard’s surveillance video showing
Richardson masturbating in a car and introduced evidence that Richardson was a
registered sex offender and was on probation. The Government also introduced
evidence of Richardson’s prior convictions, including the name of the prior offense,
the date of the conviction, the jurisdiction where the offense occurred, the felony
offense level, the length of Richardson’s sentence, the probation condition
prohibiting him from possessing a firearm, and the relevant information in those
convictions that proved Richardson was the individual convicted.
Richardson was convicted by a jury of one count of possession of a firearm
by a felon. In calculating Richardson’s base offense level, the presentence
investigation report applied a sentencing enhancement, U.S.S.G. § 2K2.1(a)(3),
which applies if the defendant has at least one prior felony conviction “of either a
crime of violence or a controlled substance offense.” Richardson objected to the
classification of his prior felony conviction for North Dakota robbery as a crime of
violence under U.S.S.G. § 4B1.2. The district court overruled the objection and
sentenced Richardson to 120 months’ imprisonment. Richardson appeals,
challenging the district court’s denial of his motion to suppress, the additional
evidentiary rulings, and the application of the sentencing enhancement.
II.
We begin with Richardson’s argument that the district court erred in denying
his motion to suppress because there was no probable cause to arrest him and search
his person or vehicle. “We review the denial of the motion to suppress under a mixed
standard of review.” United States v. Holly, 983 F.3d 361, 363 (8th Cir. 2020). “We
review the district court’s findings of fact under the clearly erroneous standard, and
the ultimate conclusion of whether the Fourth Amendment was violated is subject to
de novo review.” Id. “We will reverse a finding of fact for clear error only if, despite
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evidence supporting the finding, the evidence as a whole leaves us with a definite
and firm conviction that the finding is a mistake.” Id. (internal quotation marks
omitted).
The Fourth Amendment prohibits unreasonable searches and seizures. U.S.
Const. amend. IV. “In the absence of a warrant, a search is reasonable only if it falls
within a specific exception to the warrant requirement.” Riley v. California, 573
U.S. 373, 382 (2014). “A warrantless arrest is consistent with the Fourth
Amendment if it is supported by probable cause.” United States v. Rowe, 878 F.3d
623, 629-30 (8th Cir. 2017). “Probable cause to make a warrantless arrest exists
when the totality of the circumstances at the time of the arrest [is] sufficient to lead
a reasonable person to believe that the defendant has committed or is committing an
offense.” Ulrich v. Pope Cnty., 715 F.3d 1054, 1059 (8th Cir. 2013) (internal
quotation marks omitted). “Law enforcement officers have substantial latitude in
interpreting and drawing inferences from factual circumstances.” United States v.
Green, 9 F.4th 682, 690 (8th Cir. 2021) (internal quotation marks omitted).
Once a defendant has been arrested, police can search the defendant’s person
for the purpose of “protecting arresting officers and safeguarding any evidence of
the offense of arrest that an arrestee might conceal or destroy.” Arizona v. Gant, 556
U.S. 332, 339 (2009). “[W]hen a probationer is subject to a probationary search
condition, the Fourth Amendment permits an officer to search pursuant to that
condition without a warrant based only upon that officer’s reasonable suspicion that
the probationer is violating his probation’s terms.” United States v. Brown, 346 F.3d
808, 811 (8th Cir. 2003); see United States v. Rodriquez, 829 F.3d 960, 961-62 (8th
Cir. 2016) (approving of a search of a car under the probation-search exception to
the warrant requirement).
First, we conclude that the officers had probable cause to arrest Richardson
because the totality of the circumstances at the time of the arrest was sufficient to
lead a reasonable person to believe that Richardson committed the offense of
indecent exposure. See Ulrich, 715 F.3d at 1059. Under North Dakota law, “[a]n
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individual, with intent to arouse, appeal to, or gratify that individual’s lust, passions,
or sexual desires, is guilty of a class A misdemeanor if that individual . . .
[m]asturbates in a public place or in the presence of a minor.” See N.D. Cent. Code
§ 12.1-20-12.1(1)(a).
Before Richardson’s arrest, Holtgard had reported a white male in a silver
SUV masturbating in front of her house in Fargo, North Dakota and provided to the
police a surveillance video of the incident. The license plate number Teschendorf
provided of the car she saw parked in front of Holtgard’s house linked the car to
Richardson’s uncle, a white male who lived in Williston, North Dakota; in the sex-
offender registry, the car was registered as Richardson’s vehicle. Richardson’s
probation officer said that he had given Richardson permission to travel to Fargo,
North Dakota, and GPS data from Richardson’s GPS unit showed that Richardson
was in Holtgard’s neighborhood at the time when the car was reported on January 4
and 7. Richardson had previously been convicted of indecent exposure and was a
registered sex offender.
Richardson argues that it was unreasonable to rely on the GPS data because
the tracking device was not working properly and that it was unreasonable to suspect
Richardson committed indecent exposure because Holtgard identified the suspect as
white. True, the GPS data shows inconsistencies in Richardson’s location.
Nonetheless, it was reasonable to rely on the GPS tracker data and to assume that
the tracking device was working properly because Detective Simonson did not know
the GPS device was not working properly. Cf. United States v. Martin, 15 F.4th 878,
882 (8th Cir. 2021) (noting that it is reasonable for police officers to rely on third-
party GPS data when pursuing suspects). And although Richardson is black and
Holtgard reported seeing a white male, Detective Simonson testified that he knew
Richardson has a “pretty light complexion” and that in the video “he turns on his
dome light . . . and it’s pretty bright in there,” so “I could understand how someone
might perceive him as a white male.” It was reasonable to infer that Richardson was
the driver seen masturbating in front of Holtgard’s house. See Green, 9 F.4th at 690.
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Second, we conclude that the officers properly searched Richardson’s person
and his car after he was arrested. The search of Richardson’s person was a proper
search incident to arrest. See Gant, 556 U.S. at 339. The search of the CR-V was a
proper probationary search because Richardson was subject to a probationary search
condition and there was reasonable suspicion to believe that he possessed firearms
based on the pistol magazine found in his pocket or that he violated the law by
committing the offense of indecent exposure, both of which were prohibited by his
probation conditions. See Brown, 346 F.3d at 811; Rodriquez, 829 F.3d at 961-62.
III.
Next, Richardson argues that the district court should have limited the
evidence introduced about his six prior felony convictions because the Government
needed to prove only that Richardson knew he had one prior conviction punishable
by more than one year’s imprisonment. See § 922(g)(1); Rehaif v. United States,
588 U.S. ---, 139 S. Ct. 2191, 2200 (2019) (“[I]n a prosecution under 18 U.S.C.
§ 922(g) . . . , the Government must prove both that the defendant knew he possessed
a firearm and that he knew he belonged to the relevant category of persons barred
from possessing a firearm.”). According to Richardson, the probative value of the
evidence about prior convictions besides the first conviction is substantially
outweighed by the risk of unfair prejudice. See Fed. R. Evid. 403.
“Evidentiary rulings are reviewed for abuse of discretion, and we afford
deference to the district judge who saw and heard the evidence.” United States v.
Hellems, 866 F.3d 856, 861 (8th Cir. 2017). We may reverse an evidentiary ruling
“only when [it] affected the defendant’s substantial rights or had more than a slight
influence on the verdict.” Id.The district court did not abuse its discretion in allowing the Government to
introduce evidence about Richardson’s six prior convictions. “[T]he government
can introduce evidence of multiple prior felony convictions . . . to ensure that the
government can satisfy its burden of proof in the event the defendant is successful
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in contesting one or more of the convictions in front of the jury.” Id. at 862-63(internal quotation marks and brackets omitted). Generally, under Rule 403, “if a
defendant is willing to stipulate to his prior felony conviction, the district court must
keep evidence of the name and nature of the conviction out of the record.” Id. at
862; see also Old Chief v. United States, 519 U.S. 172, 180, 185-86, 191-92 (1997).
But “[w]hen a defendant refuses to stipulate [to a prior felony conviction], the
government may introduce the name and nature of the prior convictions to prove the
prior-conviction element of the charge.” Hellems, 866 F.3d at 862. The Government
may also introduce evidence that the defendant was the person convicted of the
offense. United States v. Jones, 266 F.3d 804, 811 (8th Cir. 2001).
Contrary to Richardson’s claim, the probative value of the evidence of his
prior convictions was not substantially outweighed by the risk of unfair prejudice.
Richardson did not stipulate that he knew he was a felon, meaning the district court
was permitted notwithstanding Old Chief to admit evidence about the prior
convictions to prove that Richardson knew he was a felon. See Hellems, 866 F.3d
at 862; Rehaif, 139 S. Ct. at 2200. Accordingly, the Government properly introduced
as to Richardson’s convictions the name of the prior offense, the jurisdiction where
it occurred, the felony offense level, and the length of Richardson’s sentence to prove
that he had previously been convicted of a crime punishable by a term of
imprisonment exceeding one year. See Hellems, 866 F.3d at 862; § 922(g)(1). The
Government also properly provided testimony about the convictions to prove that
Richardson was the person convicted. See Jones, 266 F.3d at 811. Further,
introducing evidence about all of Richardson’s convictions was probative of whether
he knew he was a felon. See Rehaif, 139 S. Ct. at 2200; United States v. Hammond,
996 F.3d 374, 396 (7th Cir. 2021) (“[The defendant] had several prior felony
convictions, including other armed robberies, for which he received decades-long
sentences. . . . There is no doubt that a jury permitted to hear such evidence would
find [the defendant] knew his felon status.” (internal quotation marks and alteration
omitted)).
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Although the Government introduced some information about the convictions
not mentioned in Hellems or Jones—the jurisdiction and the date of the offense—
that information was probative of Richardson’s prior convictions. See Fed. R. Evid.
401. Though also not mentioned in Hellems or Jones, the probation condition
prohibiting Richardson from possessing firearms is probative of whether Richardson
knew he was a felon. See Rehaif, 139 S. Ct. at 2200. The district court did not abuse
its discretion in declining to exclude this evidence.
The fact that one of Richardson’s prior convictions was for possession of a
firearm by a felon does not alter this conclusion. We have previously held in a case
involving a conviction for possession of a firearm by a felon that “the admission of
[the defendant’s] three prior felony convictions was [not] unduly prejudicial, despite
the fact that two involved the misuse of firearms.” Rush v. United States, 795 F.2d
638, 639-40 (8th Cir. 1986); see also United States v. Betcher, 534 F.3d 820, 825
(8th Cir. 2008) (“Unfair prejudice means an undue tendency to suggest decision on
an improper basis.”). Furthermore, here, the district court limited prejudicial effect
by instructing the jury that the evidence of prior convictions “does not mean that the
Defendant committed the crime charged here. You may use the evidence of the prior
convictions only to help you decide whether the United States has proven that the
Defendant had been convicted of a crime punishable by imprisonment for more than
one year.” See United States v. Aldridge, 664 F.3d 705, 715 (8th Cir. 2011) (“The
presence of a limiting instruction diminishes the danger of any unfair prejudice
arising from the admission of other acts.” (brackets omitted)). Therefore, the district
court did not abuse its discretion in admitting evidence about Richardson’s six prior
convictions.
IV.
Next, Richardson argues that the district court abused its discretion in
admitting evidence about the indecent-exposure incident, his sex-offender and
probation status, and the fact that he was subject to GPS monitoring. We also review
this evidentiary ruling for an abuse of discretion. See Hellems, 866 F.3d at 861.
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Only relevant evidence is admissible, Fed. R. Evid. 402, and relevant evidence is
evidence having “any tendency to make a fact more or less probable than it would
be without the evidence” so long as “the fact is of consequence in determining the
action,” Fed. R. Evid. 401. “The court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid.
403. Subject to these rules, “[w]e have recognized that a jury is entitled to know the
circumstances and background of a criminal charge, and have permitted the
introduction of evidence providing the context in which the crime occurred, i.e. the
res gestae.” United States v. LaDue, 561 F.3d 855, 857 (8th Cir. 2009) (internal
quotation marks and brackets omitted).
“In felon-in-possession cases, we have defined the scope of the res gestae to
include the events immediately preceding the defendant’s arrest, as well as the
circumstances of the arrest itself.” Id. at 857-58 (citations omitted). “[W]hen
evidence of other crimes is so blended or connected . . . ; or explains the
circumstances [of the crime charged]; or tends logically to prove any element of the
crime charged, it is admissible as an integral part of the immediate context of the
crime charged.” United States v. Fleck, 413 F.3d 883, 890 (8th Cir. 2005).
The district court did not abuse its discretion in allowing the Government to
introduce evidence about Richardson’s indecent exposure, including the surveillance
video and his sex-offender and probation status. The evidence about Richardson’s
alleged indecent exposure explains the circumstances of Richardson’s later
indictment for possession of a firearm by a felon. When Richardson was arrested
during the traffic stop, he was arrested for indecent exposure, not possession of a
firearm by a felon. Detective Simonson would not have been able to identify
Richardson as the suspect had Richardson not been a registered sex offender on
probation, monitored by GPS. Even though the indecent-exposure incident occurred
three days before the arrest, it is inextricably intertwined with the felon-in-
possession offense. See LaDue, 561 F.3d at 858.
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Richardson argues that even if the evidence was probative, the probative value
of the evidence was substantially outweighed by the danger of unfair prejudice. We
disagree. “Unfair prejudice means an undue tendency to suggest decision on an
improper basis, including evidence which is so inflammatory on its face as to divert
the jury’s attention from the material issues in the trial.” United States v. Huyck,
849 F.3d 432, 440 (8th Cir. 2017) (internal quotation marks and brackets omitted).
The res gestae evidence is probative of why Richardson was arrested and how the
firearms were discovered, including how the officers identified Richardson’s car
where the AR-15 was found. True, the res gestae evidence suggests that Richardson
is guilty of indecent exposure. But the res gestae evidence does not involve any
violent conduct or a firearm and is not “so inflammatory on its face as to divert the
jury’s attention from the material issues in the trial.” See Huyck, 849 F.3d at 440.
The probative value of the res gestae evidence was not substantially outweighed by
the danger of unfair prejudice. Therefore, the district court did not abuse its
discretion in allowing the Government to introduce the evidence about the
circumstances of Richardson’s arrest that led to finding the firearms. See Fed. R.
Evid. 403.
V.
Finally, Richardson argues that North Dakota robbery is not a crime of
violence under U.S.S.G. § 4B1.2(a), see § 2K2.1 cmt. n.1 (defining “[c]rime of
violence” with reference to § 4B1.2(a)), and therefore the district court erred in
applying the sentencing enhancement. “We review the district court’s determination
that an offense qualifies as a crime of violence under the Guidelines de novo.”
United States v. Lopez-Castillo, 24 F.4th 1216, 1218 (8th Cir. 2022). “Under the
Sentencing Guidelines, a ‘crime of violence’ is any offense ‘under federal or state
law . . . that . . . has as an element the use, attempted use, or threatened use of
physical force against the person of another,’ or is one of a list of enumerated
offenses (including robbery).” United States v. Stovall, 921 F.3d 758, 759 (8th Cir.
2019) (quoting § 4B1.2(a)).
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We need not decide whether North Dakota robbery qualifies as a crime of
violence because any alleged error was harmless. “Incorrect application of the
Guidelines is harmless error where the district court specifies the resolution of a
particular issue did not affect the ultimate determination of a sentence, such as when
the district court indicates it would have alternatively imposed the same sentence
even if a lower guideline range applied.” United States v. Martinez, 821 F.3d 984,
988-89 (8th Cir. 2016) (internal quotation marks and citation omitted); see Fed. R.
Crim. P. 52(a). Here, the district court said that “this is a sentence that the Court
would impose regardless of the guidelines based on 3553(a) factors and based on the
entire record in this matter.” This statement is sufficient to show that the alleged
error in finding that North Dakota robbery is a crime of violence did not affect
Richardson’s sentence. See Martinez, 821 F.3d at 988-89. Thus, the alleged error
was harmless.
VI.
For the foregoing reasons, we affirm the denial of Richardson’s suppression
motion, the district court’s additional evidentiary rulings, and Richardson’s
sentence.
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