U.S.A v. Richardson

• Decision Date: 05 May 2000
• Docket Number: No. 97-4149,No. 97-4101,97-4101,97-4149
• Citation: 233 F.3d 223
• Parties: (4th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. NATHANIEL A. RICHARDSON, JR., a/k/a Nathaniel Skeeter, a/k/a Skeet, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JERMAINE CLEAVON GOLDEN, Defendant-Appellant. . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 223

233 F.3d 223 (4th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. NATHANIEL A. RICHARDSON, JR., a/k/a Nathaniel Skeeter, a/k/a Skeet, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JERMAINE CLEAVON GOLDEN, Defendant-Appellant.

No. 97-4101 No. 97-4149.

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: May 5, 2000.

Decided: November 22, 2000.

Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk.

Raymond A. Jackson, District Judge. (CR-96-153)

[Copyrighted Material Omitted] COUNSEL ARGUED: Keith Loren Kimball, COLGAN & KIMBALL, P.L.C., Virginia Beach, Virginia, for Appellants. Vincent L. Gambale, Assistant United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Douglas Fredericks, Norfolk, Virginia, for Appellants. Helen F. Fahey, United States Attorney, Laura Pellatiro Tayman, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Before WIDENER and MOTZ, Circuit Judges, and Irene M. KEELEY, United States District Judge for the Northern District of West Virginia, sitting by designation.

Affirmed by published opinion. Judge Widener wrote the opinion, in which Judge Motz and Judge Keeley joined.

OPINION

WIDENER, Circuit Judge:

In a prior unpublished decision, we affirmed the various convictions for drug related crimes of Nathaniel A. Richardson, Jr., Jermaine Cleavon Golden, and Avery Myron Lawton.¹ United States v. Nathaniel A. Richardson, No. 97-4101(L), 162 F.3d 1158 (table), 1998 WL 546096 (4th Cir. 1998) (Nathaniel Richardson). Nathaniel Richardson and Golden filed a petition for certiorari in the Supreme Court, which granted certiorari, vacated our just mentioned prior decision in Nathaniel A. Richardson, Jr. v. United States, 526 U.S. 1155 (1999), and remanded the case for reconsideration in light of the Court's decision in an unrelated case, Eddie Richardson v. United States,² 526 U.S. 813 (1999) (Eddie Richardson). Upon reconsidera- tion, we affirm both Golden's and Nathaniel Richardson's respective convictions and sentences.

I.

We consider here the Continuing Criminal Enterprise conviction of Nathaniel A. Richardson, Jr., pursuant to the remand from the Supreme Court, and as well we consider the argued application of Jones v. United States, 526 U.S. 227 (1999), and Apprendi v. New Jersey, 120 S.Ct. 2348 (June 26, 2000), to the conspiracy conviction of Richardson and to Richardson's substantive conviction on Count THREE. We also consider any application of Apprendi to the sentencing of these defendants. Other than that, we adhere to our decision in United States v. Nathaniel A. Richardson, Jr., No. 97-4101(L), 162 F.3d 1158 (table), 1998 WL 546096 (4th Cir. 1998) (Nathaniel Richard- son).³

II.

The facts concerning the underlying drug conspiracy leading to the arrests and trial in this case were set forth in our prior opinion, and we restate them here.

Evidence at trial (taken in the light most favorable to the Government) established that at the relevant times charged in the indictment, Richardson organized and operated a continuing drug trafficking operation in the Southside Gardens area of Portsmouth, Virginia. Beginning in 1992, Richardson and Joseph Dodd began purchasing crack cocaine in relatively large quantities which they then sold to lower-level dealers, including [ ] Avery Lawton. Over the next two years, Richardson purchased ever increasing quantities of crack cocaine such that early in 1994 Richardson regularly purchased kilogram quantities of crack cocaine from a sup- plier named Michael Cromwell.

By 1995, Richardson's illicit business relationship with Cromwell was thriving to the point that Cromwell sent couriers to Suriname, South America to bring kilogram quantities of liquid and powder cocaine to the United States on Richardson's behalf. Cromwell then processed the cocaine, sometimes with the help of Richardson, and Richardson then sold quantities to several underlings, including Golden and Lawton.

. . . In May 1995, Portsmouth police officers, exercising a valid search warrant at Joseph Dodd's residence, recovered 642.5 grams of crack cocaine. Richardson was present in the bedroom where the cocaine was found and evidence at trial established that this cocaine had originally been part of a larger three kilogram shipment that Richardson stored at the residence of one Fred Hamm. See JA 344-45.

Following his arrest on drug distribution charges in connection with the May search and seizure, Richardson expanded his enterprise into heroin distribution. During the fall of 1995 Richardson provided Hamm with heroin, instructed Hamm on where to buy cutting agents, and taught him how to dilute and package the product for street distri- bution. Lawton was also brought into this expansion of the drug trade and he began selling the product in the Southside area. See JA 948-50; 972-75; 10001-02; 1077-79.

Finally, in July 1996, seven defendants (including appellants here) were charged by a federal grand jury in a sixteen- count indictment alleging a criminal conspiracy to distribute crack cocaine and heroin. Richardson, Lawton, and Golden, each plead not guilty and were tried together. Following a jury trial, appellants were found guilty of various charges. Richardson was convicted of conspiracy [under 21 U.S.C. § 846], engaging in a criminal enterprise[in violation of 21 U.S.C. § 848], possession with intent to distribute crack cocaine [under 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2], and [two counts of] money laundering [under 18 U.S.C. § 1956(a)]. Golden was convicted of conspiracy [under 21 U.S.C. § 846], possession with intent to distribute crack cocaine [under 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2], and carrying a firearm in relation to a drug trafficking offense [under 18 U.S.C. §§ 924(c) and 2]. . . .

Nathaniel Richardson, No. 97-4101(L), 162 F.3d 1158 (table), 1998 WL 546096, at *1-2. The district court sentenced Nathaniel Richard- son to life imprisonment for both the continuing criminal enterprise count and the substantive drug count and to 240 months imprisonment for each of his two money laundering counts. The district court vacated Richardson's conspiracy conviction treating it as a lesser- included offense of the continuing criminal enterprise conviction. The district court sentenced Golden to 235 months imprisonment for the conspiracy and possession counts, to be served concurrently, followed by an additional 60 months imprisonment for the firearm count. Richardson and Golden timely appealed their convictions to this court. In that appeal, Richardson raised for the first time the argument that the district court erred by failing to instruct the jury sua sponte that all the jurors had to agree unanimously on which three acts constituted the continuing series of violations necessary for a conviction on the continuing criminal enterprise count.⁴ Nathaniel Richardson No. 97-4101(L), 162 F.3d 1158 (table), 1998 WL 546096, at *5 n.2. We rejected that argument based on our decision in United States v. Hall, 93 F.3d 126 (4th Cir. 1996), which held that district courts were not required to give such an instruction. Nathaniel Richardson, No. 97-4101(L), 162 F.3d 1158 (table), 1998 WL 546096, at *5 n.2 (cit- ing United States v. Hall, 93 F.3d at 129-30). We also rejected Rich- ardson's and Golden's remaining claims and affirmed their convictions. Nathaniel Richardson, No. 97-4101(L), 162 F.3d 1158 (table), 1998 WL 546096, at *3-8.

Nathaniel Richardson and Golden then appealed our decision in Nathaniel Richardson to the Supreme Court. In his petition for certio- rari, Nathaniel Richardson again argued that the jury should have been instructed to agree unanimously on the specific acts that consti- tuted the series of violations for the continuing criminal enterprise count.⁵ While Nathaniel Richardson's and Golden's petition was pending, the Supreme Court held in the unrelated case, Eddie Richardson, that under the continuing criminal enterprise statute, 21 U.S.C. § 848, the jury had "to agree unanimously about which spe- cific violations make up the `continuing series of violations.'" Eddie Richardson, 526 U.S. at 815. This decision abrogated the holding of United States v. Hall that such an instruction was not required. See United States v. Brown, 202 F.3d 691, 699 (4th Cir. 2000) (acknowl- edging Hall's abrogation). Pursuant to its holding in Eddie Richardson, the Court vacated our decision in Nathaniel Richardson and remanded for reconsideration in light of its holding in Eddie Richardson. Nathaniel A. Richardson, Jr. v. United States, 526 U.S. 1155 (1999). Richardson now argues that the district court committed reversible plain error by failing to give a unanimity instruction and that we should exercise our discretion to notice the error, reverse his conviction, and order a new trial. Richardson also reasserts all his prior arguments raised to this court in his first appeal.

Golden was not convicted of continuing criminal enterprise, thus the Supreme Court's decision in Eddie Richardson did not affect our decision regarding Golden in Nathaniel Richardson. In Nathaniel Richardson, Golden only pursued his claim that the district court erro- neously failed to sustain his Batson challenge. Nathaniel Richardson, No. 97-4101(L), 162 F.3d 1158 (table), 1998 WL 546096, at *2-3. This was also the only claim Golden pursued on certiorari to the Supreme Court. Golden reasserts his Batson claim in this appeal.

III.

To convict a defendant of continuing criminal enterprise under 21 U.S.C. § 848(c), the government must show that a defendant commit- ted a felony violation of the federal drug laws and that "such violation [was] a part of a continuing series of violations of [the federal drug laws]." 21 U.S.C. § 848(c)(2); see Brown, 202 F.3d at 698. The dis- trict court instructed the jury that "the phrase`a continuing series of violations' means three or...