United States v. Richardson ( 1999 )

REVISED - March 15, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-30168
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALLEN B. RICHARDSON, JR.,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Louisiana
_________________________________________________________________
March 1, 1999
Before JOLLY, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
In this appeal, Allen B. Richardson first challenges the
sufficiency of the evidence supporting his drug conspiracy
conviction. Richardson next contends that his convictions for
the three counts of possession of a firearm, and the one count of
making a false claim in acquiring a firearm should be reversed
because he was not prohibited from possessing a firearm under
federal law. Finally, Richardson seeks reversal of all of his
convictions (including the counts for drug possession and
distribution, and the possession of a firearm with an obliterated
serial number) on the grounds that the district court erred in
admitting the extrinsic evidence of his numerous other uncharged
crimes. We affirm each of Richardson’s judgments of conviction.
I
On January 15, 1997, a jury found Richardson guilty of every
count of a nine-count indictment handed down by the grand jury on
October 10, 1996. The jury convicted Richardson of conspiring to
distribute cocaine base with known and unknown persons from
January 1, 1994 until August 30, 1996.1 Regarding the firearm
charges, the jury found Richardson guilty of three counts of
possession of a firearm by a convicted felon,2 and one count of
making a false claim in acquiring a firearm.3 Specifically,
Richardson was convicted of the unlawful possession of a Glock
Model 17 9mm semiautomatic pistol on January 19, 1995, a
Remington Model 207 30/30 rifle on February 22, 1995, and a RG
Model 25 .22 caliber revolver on August 19, 1995. The Glock 9mm
also formed the basis of Richardson’s conviction for making a
1
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.
2
18 U.S.C. §§ 922(g)(1) and 924(a)(2). Previously, on
June 18, 1984, Richardson was convicted in Louisiana state court
of the possession of marijuana with the intent to distribute.
Richardson received a suspended sentence of five years hard
labor, was placed on five years probation, and was fined $2,500.
On June 18, 1989, Richardson received a first offender pardon
from the state of Louisiana under La. Rev. Stat. Ann. § 15:572.
3
18 U.S.C. §§ 922 (a)(6) and 924 (a)(2).
2
false claim in acquiring a firearm on November 21, 1994. The
jury further found Richardson guilty of one count of possession
of a firearm with an obliterated serial number, namely, the .22
revolver on August 19, 1995.4 Richardson’s remaining convictions
included one count of distributing four pieces of cocaine base on
March 6, 1995,5 and two counts of possession with intent to
distribute cocaine base.6 The respective dates for the two counts
of possession with intent to distribute are March 6, 1995, and
April 4, 1995.
On appeal, Richardson argues there is insufficient evidence
to support his conviction for the conspiracy to distribute
cocaine base because the government only presented evidence of
his buyer/seller relationships with Bryan Leleux, Grady Jones,
and Donald Matthews. Second, Richardson contends that his
convictions under § 922(g)(1) for the three counts of possession
of a firearm should be reversed on the grounds that his
possession of the firearms was not unlawful because he has no
prior felony conviction as defined under § 921(a)(20)(B).7
4
18 U.S.C. §§ 922(k) and 924(a)(1)(B).
5
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).
6
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).
7
Other than his argument that each of his judgments of con-
viction should be reversed on the grounds that his trial was
tainted with unfair prejudice, Richardson does not specifically
3
Richardson next argues that his conviction under § 922(a)(6) for
making a false claim in acquiring a firearm should be reversed.
To support this argument, Richardson bootstraps it to his
previous argument. Richardson contends that he was not
prohibited from possessing a firearm under federal law, and,
thus, under § 922(a)(6), his representation on the federal AFT
Form 4473 that he was not a convicted felon was not material to
the lawfulness of sale. Richardson’s final argument on appeal is
that the district court committed plain error when it admitted
extrinsic evidence of the numerous other uncharged crimes that he
committed, and therefore all nine of his convictions should be
reversed. Richardson did not object to the admission of the
evidence at trial, but now contends that the evidence was
admitted in violation of Fed.R.Evid. 404(b), and was unfairly
prejudicial under Fed.R.Evid. 403.
It is clear to us that when viewing the evidence in the
light most favorable to the verdict, the sufficiency of the
evidence supports the conspiracy charge.8 Similarly,
appeal his conviction for the possession of the .22 revolver with
an obliterated serial number.
8
Richardson ignores the substantial evidence, in addition to
the proof of his buyer/seller relationships, that supports the
conspiracy charge. Matthews testified that during a couple of
his drug transactions, he would drive up to Richardson’s home,
and “someone” other than Richardson would run out to meet him to
assist in the sale. During a March 5, 1995 drug raid on
4
Richardson’s argument under § 922(a)(6) that his false
representation on the federal ATF Form 4473 was not material to
the lawfulness of the sale is obviously meritless, in the light
of our determination that he is a felon for purposes of the
federal statute. Furthermore, the district court committed no
plain error in admitting the evidence of Richardson’s numerous
other uncharged crimes.9 We therefore turn to address what we
Richardson’s home, where Richardson was found in possession of
forty-seven rocks of crack cocaine, an unidentified black male
also fled the scene. During the April 4, 1995 drug raid on
Richardson’s home, yet another third person was present, but this
time handcuffed at the scene. Richardson was caught with a
quarter of a “cookie” of crack cocaine, and 103 rocks of the
drug, which were “just cooked up.” [1 Supp. R. 152]. Finally,
Richardson was in the company of others at a Morris, Louisiana
residence on January 19, 1995, where again crack cocaine was
found in the home, and also in Richardson’s car. Clearly, the
totality of this evidence allowed the jury to find Richardson
guilty of the conspiracy to distribute cocaine base beyond a
reasonable doubt.
9
On appeal, Richardson lists the numerous crimes that he now
challenges as evidence improperly admitted into evidence under
Fed.R.Evid. 404(b) and Fed.R.Evid. 403. Because Richardson did
not object to the admission of the evidence at trial, we review
for plain error. United States v. Calverley, 37 F.3d 160, 162
(5th Cir. 1994) (en banc), abrogated in part by Johnson v. United
States, 117 S. Ct. 1544, 1549 (1997). Under the plain error
standard, forfeited errors are subject to review only where they
are “obvious,” “clear,” or “readily apparent,” and they affect
the defendant’s substantial rights. Id. at 162-63 (citations
omitted). Even then, we will not exercise our discretion to
correct the forfeited errors unless they “seriously affect the
fairness, integrity, or public reputation of the judicial
proceeding.” Id. at 164 (citations omitted); United States v.
Clements, 73 F.3d 1330, 1337 (5th Cir. 1996)(citations omitted).
Applying these standards to the record before us, we do not find
that the admission of the evidence of Richardson’s repeated drug
5
consider to be the only serious issue presented in this appeal.
II
A
Richardson argues that his convictions on the three counts
of possession of a firearm must be reversed because he has no
prior felony conviction as defined in § 921(a)(20)(B).
Richardson contends that his June 18, 1984 Louisiana state
sales to Leleux, Jones, and Matthews constituted plain error.
See United States v. Misher, 99 F.3d 664, 670-71 (5th Cir.),
cert. denied, 118 S. Ct. 73 (1997) (citations omitted). Even
under the more stringent standard of abuse of discretion, we have
frequently held that evidence of the defendant’s extrinsic drug
offenses is admissible, and that the probative value of such
evidence is not substantially outweighed by its prejudicial
effect. Id.; United States v. Wilwright, 56 F.3d 586, 589 (5th
Cir.), cert. denied, 116 S. Ct. 345 (1995) (citing cases); United
States v. Bermea, 30 F.3d 1539, 1562 (5th Cir.), cert. denied,
115 S. Ct. 1113 (1995) (citing cases). Regarding the remaining
evidence of Richardson’s several other uncharged crimes, we
cannot say that Richardson’s characterization of these crimes as
extrinsic evidence is so clearly correct under this circuit’s law
that the district court’s error in admitting the proof is
“readily apparent.” After a careful review of the record, we are
satisfied that it is not readily apparent that the evidence of
these uncharged crimes did not “[arise] out of the same
transaction,” was not “part of a single criminal episode,” nor
was “inextricably intertwined” with the evidence of Richardson’s
charged offenses. See Clements, 73 F.3d at 1337; United States
v. Kloock, 652 F.3d 492, 494 (5th Cir. 1981). Therefore, we
cannot say that the evidence falls within the proscription of
Fed.R.Evid. 404(b). Even if we assumed error on the part of the
district court, Richardson cannot show that the admission of this
evidence prejudiced his substantial rights, much less that it
“seriously affected the fairness, integrity, or public
reputation” of his trial, so as to warrant reversal of all nine
of his convictions. Calverley, 37 F.3d at 164. Accordingly,
Richardson has not shown plain error with respect to the
admission of this evidence.
6
conviction cannot serve as a predicate felony because on June 18,
1989, he received a first offender pardon for the conviction.
Richardson argues that the pardon contained no provisions that
restricted his right to possess firearms, but, instead, the
pardon provided that all of his rights of citizenship were
restored in Louisiana. Richardson concedes, however, that a
letter included in his packet issued by the State of Louisiana
further provided, in accordance with La. Rev. Stat. Ann. §
14:95.1, that the pardon did not restore his right to receive,
possess, or transport a firearm, and that such right would be
automatically restored in ten years from the date that Richardson
completed his sentence. Nonetheless, Richardson argues that
although he was not permitted to possess a gun under Louisiana
state law, this prohibition does not extend to federal law
because the restriction on his right to possess firearms did not
appear in the pardon document itself, as required by
§ 921(a)(20)(B).
B
Under § 922(g)(1), it is unlawful for anyone "who has been
convicted in any court of a crime punishable for a term exceeding
one year . . . [to] possess . . . any firearm . . . which has
been shipped or transported in interstate commerce." 18 U.S.C.
§ 922(g)(1) (1988 & Supp. 1992). Section § 922(g)(1), however,
7
is to be read in the light of § 921(a)(20)(B), which defines the
phrase “conviction of a crime punishable for a term exceeding one
year” for the purposes of § 922(g)(1). Section 921(a)(20)(B)
provides that:
What constitutes a conviction of such a crime shall be
determined in accordance with the law of the
jurisdiction in which the proceedings were held. Any
conviction which has been expunged, or set aside or for
which a person has been pardoned or has had civil
rights restored shall not be considered a conviction
for purposes of this chapter, unless such pardon,
expungement, or restoration of civil rights expressly
provides that the person may not ship, transport,
possess, or receive firearms.
18 U.S.C. § 921(a)(20)(B) (Supp. 1992). (Emphasis added.)
Essentially, § 921(a)(20)(B) was enacted “to give federal
effect to state statutes that fully restore the civil rights of
convicted felons when they are released from prison, or are
granted a pardon, or have their convictions expunged.” United
States v. Thomas, 991 F.2d 206, 209 (5th Cir.), cert. denied, 510
U.S. 1014 (1993). See also United States v. Dupaquier, 74 F.3d
615, 617 (5th Cir. 1996).
Applying this statutory language and purpose to the case
before us, we reject Richardson’s argument that for the purposes
of interpreting § 921(a)(20(B), the notice of the firearm
prohibition must actually appear on the face of the pardon. The
plain language of § 921(a)(20)(B) makes clear that if a state
8
pardon “expressly provides” that a person may not possess a
firearm, then the pardon does not otherwise relieve a defendant
of criminal liability under § 922(g)(1). Richardson does not
dispute that a letter, which was a part of the packet he
received, further provided that “since your conviction involved
an offense outlined in [La. Rev. Stat. Ann. § 14:95.1], this
pardon does not restore the right to receive, possess, or
transport a firearm as per this [§ 1495]. This right will
automatically be restored ten years from the date your sentence
was completed.”10 It is thus clear that the State of Louisiana
expressly limited the scope of Richardson’s pardon and, hence,
the restoration of his civil rights under state law vis-à-vis
firearms. Therefore, it seems to us that the addendum setting
out the conditions of the pardon, which was included in the
packet given to Richardson, is actually a part of the pardon
itself.
In any event, we read § 921(a)(20)(B) to require no more
than that the state issuing the pardon expressly give notice to
the person being pardoned that the terms of the pardon prohibit
him from “ship[ping], transport[ing], possess[ing], or
receiv[ing] firearms.” See Thomas, 991 F.2d at 213 (“a state
must tell a felon that [firearms] are not kosher”). There is no
10
[1 Supp. R. 27]. (Emphasis added.)
9
question that Richardson was actually notified that his pardon
was restricted, and that his right to possess firearms would not
be restored under Louisiana law until ten years after the
completion of his sentence. It is further clear from the record
that this ten-year period had not elapsed when Richardson was
found in possession of the Glock 9mm, the Remington rifle, and
the .22 revolver. Therefore, Richardson’s prior state felony
conviction constituted a “conviction” for the purposes of
§ 921(a)(20)(B), and thus a predicate felony for the purposes of
§ 922(g)(1).
Accordingly, Richardson’s convictions on the three counts of
possession of a firearm, as well as all other convictions, are
A F F I R M E D.
10