United States v. Almond Richardson
2015 U.S. App. LEXIS 4661
| 5th Cir. | 2015Background
- In May 2007 a confidential informant (Garf en Neville) made a controlled purchase of ecstasy from Almond Richardson; police later found prerecorded buy money on Richardson and ecstasy in his store, Just 4 U Fashion.
- A federal grand jury indicted Richardson on multiple counts (including ecstasy distribution and possession, manufacture/possession of marijuana, and felon-in-possession). Richardson asked to proceed pro se shortly before trial; the district court denied that request and he was tried with retained counsel (Steven Moore).
- Moore cross-examined Neville at the first trial. Richardson was convicted; this Court later vacated the conviction because the district court had violated Richardson’s Sixth Amendment right to self-representation and remanded for retrial.
- Before the retrial Neville was murdered and therefore unavailable. The government sought to read Neville’s prior testimony at retrial; Richardson moved to exclude that testimony, arguing the prior testimony was taken in violation of his right to self-representation and that cross-examination had been inadequate.
- At the retrial, testimony by Detective Chambers elicited three contested statements (Richardson worked as an informant for DEA; Neville met Richardson as informants; other uncharged drugs found in the store). The court gave curative instructions; Richardson sought a mistrial.
- At sentencing the PSR classified Richardson as a career offender based on a 1999 armed-robbery conviction; Richardson claimed that plea was involuntary but the probation office produced state-court records supporting the conviction. The court sentenced Richardson to 210 months. He appealed.
Issues
| Issue | Richardson's Argument | Government's Argument | Held |
|---|---|---|---|
| Admission of prior testimony of unavailable witness (Neville) after first trial violated Confrontation Clause because first-trial testimony was taken while Richardson was wrongly denied self-representation and cross-examination was inadequate | Neville’s prior testimony was taken in violation of Richardson’s Sixth Amendment right to self-representation; Moore’s cross-examination was deficient and did not provide an adequate opportunity to test credibility | Confrontation Clause requires only an adequate opportunity for cross-examination; Moore’s cross-examination probed bias/motive and was constitutionally sufficient; no per se rule of exclusion when prior testimony was elicited while defendant was represented | Affirmed: prior testimony admissible because defendant had an adequate opportunity to cross-examine at first trial and did not show ineffective assistance of counsel |
| Motion for mistrial based on Chambers’s testimony about informant status and uncharged drugs | Chambers’s statements were highly prejudicial, undisclosed, and undermined defense strategy to impeach Neville, entitling Richardson to a mistrial | Statements were not deliberately elicited by Government in a prejudicial way, were not new to jury, and curative instructions cured any prejudice | Affirmed: district court did not abuse discretion; curative instructions and context rendered testimony non- incurable |
| Sentencing: career-offender enhancement premised on 1999 armed-robbery plea that Richardson says was involuntary | The prior guilty plea was involuntary (counsel accepted plea in his absence); records were lost to Hurricane Katrina so Richardson cannot prove invalidity | Burden rests on defendant to prove invalidity; probation office produced state-court documents showing plea and minute entry supporting conviction | Affirmed: Government produced reliable records; Richardson failed to prove constitutional invalidity of prior conviction |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause requires prior opportunity for cross-examination of testimonial statements)
- Pointer v. Texas, 380 U.S. 400 (1965) (admission of prior testimony unconstitutional when there was no adequate opportunity to cross-examine)
- Mancusi v. Stubbs, 408 U.S. 204 (1972) (adequate cross-examination at prior proceeding satisfies Confrontation Clause despite later vacatur for ineffective assistance)
- Mattox v. United States, 156 U.S. 237 (1895) (historical foundation for face-to-face cross-examination requirement)
- Amaya v. United States, 533 F.2d 188 (5th Cir. 1976) (prior testimony admissible where defendant had adequate cross-examination by counsel even if different counsel/strategy later)
- United States v. Paul, 142 F.3d 836 (5th Cir. 1998) (motion for mistrial reviewed for abuse of discretion; prejudice must have substantial impact on verdict)
- United States v. Valles, 484 F.3d 745 (5th Cir. 2007) (context of elicited testimony and curative instruction inform prejudice analysis)
- United States v. Ramirez–Velasquez, 322 F.3d 868 (5th Cir. 2003) (testimony so highly prejudicial that curative instruction cannot cure requires new trial)
- United States v. Delgado, 672 F.3d 320 (5th Cir. 2012) (extraneous-offense testimony may be harmless when it confirms facts already known and curative instructions applied)
- United States v. Ruiz, 621 F.3d 390 (5th Cir. 2010) (Guidelines application reviewed de novo; factual findings for clear error)