     Case: 15-30611      Document: 00513784142         Page: 1    Date Filed: 12/05/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                    No. 15-30611                              FILED
                                  Summary Calendar                     December 5, 2016
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DONALD RICHARDSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CR-86-1


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Donald Richardson appeals his jury trial conviction and 210-month
prison sentence for distribution of cocaine base (crack). Richardson argues that
(1) the indictment did not charge him with a federal crime and, therefore, the
indictment was not sufficient to confer subject matter jurisdiction on the
federal court; (2) the prosecution violated the Fifth Amendment’s double
jeopardy clause; (3) the proceedings violated his Sixth Amendment rights


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                        No. 15-30611

under the confrontation clause; (4) the district court abused its discretion by
giving a jury instruction regarding accomplice testimony; (5) the district court
erred in not holding a hearing to investigate possible juror bias; (6) the district
court abused its discretion by issuing a modified Allen 1 charge to the jury
rather than declaring a mistrial; (7) the evidence was insufficient to support
his conviction; and (8) the district court erred in sentencing him as a career
offender. Richardson’s motion requesting that we take judicial notice of the
video showing the polling of the jurors is DENIED.
      Subject matter jurisdiction “can never be waived or forfeited,” United
States v. Cotton, 535 U.S. 625, 630 (2002), therefore, allegations of defects may
be raised at any time, see FED. R. CRIM. P. 12(b)(2), and are subject to de novo
review, see United States v. Isgar, 739 F.3d 829, 838 (5th Cir. 2014).
Richardson’s argument that the indictment did not charge a federal offense is
reviewed for plain error because he did not raise it in the district court. See
United States v. Partida, 385 F.3d 546, 554 (5th Cir. 2004). A plain error is a
forfeited error that is clear or obvious and affects the defendant’s substantial
rights. United States v. Ellis, 564 F.3d 370, 377 (5th Cir. 2009). When those
elements are shown, we have the discretion to correct the error only if it
“seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotation and citation omitted).
      Contrary to Richardson’s assertions, the indictment sufficiently charged
a federal offense by charging him under 21 U.S.C. § 841(a)(1). See United
States v. Daniels, 723 F.3d 562, 572 (5th Cir.), reh’g in part granted, 729 F.3d
496 (5th Cir. 2013).          Moreover, the indictment conferred subject matter
jurisdiction to the district court by charging Richardson “with an offense
against the United States in language similar to that used by the relevant


      1   Allen v. United States, 164 U.S. 492, 501 (1896).


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statute,” Isgar, 739 F.3d at 838 (internal quotation marks and citations
omitted), such that it allowed Richardson to “prepare his defense” and “invoke
the double jeopardy clause in a subsequent proceeding,” United States v.
Hoover, 467 F.3d 496, 499 (5th Cir. 2006) (internal quotation marks and
citations omitted).
      As Richardson concedes, he did not raise the double jeopardy issue before
the district court, and review is for plain error. See United States v. Njoku, 737
F.3d 55, 67 (5th Cir. 2013). He argues that his conviction violated double
jeopardy because identical charges were still pending in state court. Even
assuming arguendo there is a “sham” prosecution exception to the dual
sovereignty doctrine, he does not assert that the state has moved forward with
prosecuting him, and his argument is without merit because double jeopardy
had not attached prior to the start of his federal trial given that he has not yet
been tried in state court. See United States v. Martin Linen Supply Co., 430
U.S. 564, 569 (1977). Moreover, his argument that his federal prosecution was
a “sham” controlled by state authorities is meritless given that no state
prosecution has occurred. See United States v. Cothran, 302 F.3d 279, 285 (5th
Cir. 2002).
      Because Richardson did not raise his confrontation clause argument in
the district court, review is for plain error. See United States v. Acosta, 475
F.3d 677, 680 (5th Cir. 2007). Richardson essentially complains that he was
not able to cross examine a law enforcement official who played a major role in
the investigation of the case. However, the Government is not required to call
every witness competent to testify and that includes law enforcement officers.
See Clinigan v. United States, 400 F.2d 849, 851 (5th Cir. 1968). Moreover, the
proceedings did not run afoul of Crawford v. Washington, 541 U.S. 36, 59
(2004), because the jury did not hear any testimony from the official, nor did



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the district court admit into evidence any reports or out of court testimonial
statements made by the official.
      Richardson asserts that the district court erred in giving a pattern jury
instruction containing the definition of an accomplice because it misled the jury
into to returning a guilty verdict. We review jury instructions for “abuse of
discretion and harmless error.” United States v. Vasquez, 677 F.3d 685, 692
(5th Cir. 2012). The district court charged the jury with instructions similar
to Pattern Jury Instructions 1.14 and 1.15, which we have cited with approval.
See 5TH CIR. PATTERN CRIM. JURY INSTR. §§ 1.14 and 1.15. The instructions
correctly stated the law, and the use of the term “alleged accomplice” was
supported by the facts, including testimony from Alton Celestine indicating
that Richardson was the supply source for Celestine’s own drug sales and that
the two had established a relationship built around their drug transactions.
See United States v. Fuchs, 467 F.3d 889, 901 (5th Cir. 2006).
      According to Richardson, the district court erred by not conducting an in
depth investigation into the prosecutor’s admission that it had learned that a
juror was acquainted with a paralegal who worked in the prosecutor’s office.
Evidentiary hearings are not required in every case where a juror may have
been affected by an outside influence, and the trial court has “broad discretion”
and “flexibility” to “handle such situations in the least disruptive manner
possible.” United States v. Ramos, 71 F.3d 1150, 1153 (5th Cir. 1995). In the
instant case, the district court was presented with information that a juror was
acquainted with a paralegal working in the office but who was not in any way
involved with Richardson’s prosecution and would not be appearing in court.
This limited relationship did not require the district court to hold an
evidentiary hearing as neither party alleged improper contact between the
juror and the paralegal, jury tampering, or any other improper conduct. Cf.



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United States v. Sylvester, 143 F.3d 923, 932 (5th Cir. 1998); United States v.
Denman, 100 F.3d 399, 405 (5th Cir. 1996). Moreover, the record in the instant
case does not support any bias, and Richardson does not allege any actual
wrongdoing. His conclusional assertions and generalized speculations that the
juror could have been biased are not sufficient to state a violation of his
substantial rights. See Solis v. Cockrell, 342 F.3d 392, 395 (5th Cir. 2003).
      Richardson additionally argues that the district court abused its
discretion by not declaring a mistrial after the jury became deadlocked instead
of issuing a modified Allen charge. This court reviews the giving of an Allen
charge for abuse of discretion. United States v. Andaverde-Tinoco, 741 F.3d
509, 515 (5th Cir. 2013). Richardson preserved his objection to the issuance
and language of the Allen charge, but concedes that review of his objection to
the district court providing a written copy to the jury is for plain error. See id.
      The district court’s charge to the jury did not significantly deviate from
the Allen charge approved by this court. See 5TH CIR. PATTERN CRIM. JURY
INSTR. § 1.45 (2015). Accordingly, there is no prejudicial semantic difference
between the given charge and the approved Allen charge. See United States v.
Allard, 464 F.3d 529, 536 (5th Cir. 2006). The trial lasted approximately two
days, and the jury deliberated for over six hours, during which times it sent
three notes to the district court indicating that it was deadlocked. Under the
totality of these circumstances, issuance of the Allen charge was not coercive.
See United States v. Eghobor, 812 F.3d 352, 359 (5th Cir. 2015); United States
v. Betancourt, 427 F.2d 851, 854 (5th Cir. 1970). Moreover, Richardson has not
demonstrated that the district court plainly erred by giving the jury, at its
request, a copy of the Allen charge. Cf. United States v. Fossler, 597 F.2d 478,
483-85 (5th Cir. 1979).




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      Richardson also argues that the district court erred in denying his
motion for judgment of acquittal because there was not sufficient evidence to
support his conviction. As Richardson preserved this issue, we consider the
evidence presented in the light most favorable to the Government to determine
whether a rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. United States v. Lopez-Moreno, 420 F.3d
420, 437-438 (5th Cir. 2005).
      In order to prove the offense of conviction, the Government had to
establish that Richardson knowingly distributed crack. § 841(a)(1); United
States v. Sotelo, 97 F.3d 782, 789 (5th Cir. 1996). Celestine testified about his
ongoing relationship with Richardson and stated that Richardson sold him
crack on March 23, 2011. See ROA.701-30. Celestine’s testimony alone is
sufficient to support the verdict. See United States v. Thompson, 735 F.3d 291,
302 (5th Cir. 2013). In addition, Celestine’s testimony was corroborated by
(1) testimony from several law enforcement officials who were involved in the
controlled buy, (2) video recordings and photos of the transaction, and
(3) expert testimony stating that a laboratory analysis had indicated that the
substance purchased during the transaction was in fact crack. Richardson
complaints about Celestine’s perceived lack of credibility are without merit as
it is within the sole province of the jury to weigh the evidence and determine
the credibility of the witnesses. See United States v. Grant, 683 F.3d 639, 642
(5th Cir. 2012); United States v. Delgado, 256 F.3d 264, 273-74 (5th Cir. 2001).
      In his final point of error, Richardson argues that the district court erred
in enhancing his sentence based on his classification as a career offender under
the Guidelines given that (1) his convictions did not qualify as crimes of
violence, (2) the district court did not review the appropriate documents, and
(3) the residual clause of U.S.S.G. § 4B1.2 is unconstitutionally vague in light



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of Johnson v. United States, 135 S. Ct. 2551 (2015). Richardson did not raise
these specific arguments before the district court; therefore review is for plain
error only. See United States v. Herrera-Alvarez, 753 F.3d 132, 135-36 (5th Cir.
2014). The career offender enhancement in U.S.S.G. § 4B1.1 applies in a
controlled substance case like Richardson’s if, among other things, the
defendant has at least two prior felony convictions for a crime of violence or a
controlled substance offense. § 4B1.1(a). Richardson had two prior Louisiana
armed robbery convictions and one simple robbery conviction, all three of
which qualify as crime of violence under the use of force clause of § 4B1.2. See
LA. REV. STAT. ANN. §§ 14:64 & 14:65; United States v. Brown, 437 F.3d 450,
452-53 (5th Cir. 2006).      Given that Richardson’s prior simple robbery
conviction and two armed robbery convictions qualify as crimes of violence for
purposes of § 4B1.1(a), the district court did not plainly err by sentencing him
as a career offender. See Brown, 437 F.3d 450, 452-53.
      We need not address Richardson’s arguments regarding the district
court’s use of the appropriate documents because the Government
supplemented the record with the necessary documents. See United States v.
Vargas-Soto, 700 F.3d 180, 183 (5th Cir. 2012). Furthermore, Richardson’s
argument based upon Johnson is without merit as the district court did not
rely on § 4B1.2(a)(2)’s residual clause.
      Accordingly, the judgment of the district court is AFFIRMED.




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