United States v. Richardson

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 17, 1999
• Docket: 98-30168
• Status: Published

Opinion

REVISED - March 15, 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-30168 _____________________

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.