U.S. v. Richardson

• Decision Date: 08 February 2008
• Docket Number: No. 06-2506.,06-2506.
• Citation: 515 F.3d 74
• Parties: UNITED STATES of America, Appellee, v. Melvin RICHARDSON, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

515 F.3d 74

UNITED STATES of America, Appellee, v. Melvin RICHARDSON, Defendant, Appellant.

No. 06-2506.

United States Court of Appeals, First Circuit.

Heard December 4, 2007.

Decided February 8, 2008.

Matthew V. Soares, with whom Melvin Richardson, pro se, was on brief, for appellant.

Vijay Shanker, Attorney, United States Department of Justice, with whom Paul Hart Smyth, Assistant United States Attorney, and Michael J. Sullivan, United States Attorney, were on brief, for appellee.

Before LIPEZ and HOWARD, Circuit Judges, and GELPÍ,^* District Judge.

GELPÍ, District Judge.

On August 11, 2005, a federal grand jury in the District of Massachusetts returned a superseding indictment charging Melvin Richardson with four counts. The first three counts charge Richardson with possession with the intent to distribute cocaine base (Counts One and Three) or cocaine (Count Two) in violation of 21 U.S.C. § 841(a)(1). Count Four charges Richardson with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Counts One and Two arose out of a September 25, 2003 traffic stop. Counts Three and Four arose out of an October 30, 2003 firearms-for-drugs deal in which Richardson provided the drugs in exchange for the firearms. On March 31, 2006, a jury convicted Richardson on all four counts. The district court sentenced him to a 216-month term of imprisonment on each count, all terms to be served concurrently.

Richardson now appeals his conviction and sentence. He argues that the district court erred in refusing to sever Counts One and Two from Counts Three and Four and in admitting extrinsic evidence of an alleged prior inconsistent statement. In a pro se brief, Richardson raises three additional arguments: (1) that the district court erroneously denied his motion to suppress the drugs seized during the September 25th inventory search of his vehicle; (2) that the district court erred in sentencing him as a career offender and as an armed career criminal; and (3) that the district court erroneously failed to determine whether sentencing entrapment or sentencing factor manipulation had occurred. After carefully reviewing the record, we affirm Richardson's conviction and sentence.

I. Background

We summarize here the relevant facts evidenced in the record, saving additional details for our analysis. Throughout this opinion, we state the facts in the light most favorable to the verdict. United States v. Fenton, 367 F.3d 14, 17 (1st Cir.2004).

A. September 25, 2003 Arrest

On September 25, 2003, State Police Trooper Sean Maher Observed a gray Nissan automobile rapidly accelerate while changing from the right to the left travel lane of northbound Route 91 in Northampton, Massachusetts. He followed the car for over half a mile and clocked its speed at between eighty and eighty-two miles per hour.

Maher pulled the vehicle over and asked Richardson, the vehicle's sole occupant, to produce his license and registration. Richardson could not produce a valid license because it had been revoked in April 2003. Without a valid license, Richardson could not legally operate his vehicle, and his vehicle could not remain on the highway. Maher, therefore, radioed for a tow truck to remove the vehicle. He also radioed for assistance.

State Police Trooper David Nims arrived to assist. After informing Richardson that his license had been revoked, which Richardson acknowledged, the troopers ordered him to exit the vehicle. Richardson complied and waited on the highway guardrail.

Nims then began an inventory search of the vehicle. Upon entering the vehicle, Nims told Maher that it smelled of burnt marijuana. Richardson informed the troopers that he had smoked marijuana in the vehicle earlier that day and on other occasions. The troopers found several marijuana roaches in the ashtray. Nims discovered a plastic bag containing what appeared to be cocaine powder in smaller plastic baggies under the driver's side rear floor mat. Maher then lifted the passenger's side rear floor mat and located another plastic bag. That bag held several tied-off haggles containing what appeared to be cocaine base. Nims also found under the driver's side front floor mat a glass receptacle containing marijuana. The troopers found no other drug paraphernalia in the vehicle. Based on their training and experience, the troopers determined that the apparent cocaine and cocaine base were packaged for distribution.

The troopers placed Richardson under arrest and transported him to the police barracks. At the barracks, Richardson Waived his Miranda rights. He volunteered that the substances were cocaine and cocaine base but denied that he was a drug dealer. He told the troopers that he was transporting the drugs to the Northampton Wal-Mart where he was supposed to meet a person from Vermont who would give him money for the drugs. Richardson also stated that he transported drugs in this manner every other day.

Crime lab testing confirmed that one bag contained 5.02 grams of cocaine powder in nine twist-tied plastic bags and that the other bag contained 12.84 grams of cocaine base in twenty-nine twist-tied plastic bags. Expert witness John Baron, a Drug Enforcement Administration ("DEA") Special Agent, testified that, based on the quantity and packaging of the drugs, both the cocaine and cocaine base removed from Richardson's vehicle were consistent with retail distribution rather than personal use.

Richardson was charged with drug offenses in Massachusetts state court and released on bail.

B. October 30, 2003 Arrest

In September 2003, Rashiid Mapp, a cooperating witness and paid confidential informant for the Bureau of Alcohol, Toger's bacco, Firearms, and Explosives ("ATF"), told ATF Special Agent James Martin that he knew Richardson. Mapp described Richardson as a multi-ounce cocaine base dealer who frequently used a residence on Oak Grove Avenue in Springfield, Massachusetts to conduct his business. Mapp also told Martin that Richardson, in furtherance of his drug dealing, carried an older firearm that he wanted to replace. Based on Mapp's information, Martin began investigating Richardson. Martin learned that Richardson was a convicted felon and, consequently, was prohibited from carrying a firearm. On October 14, 2003, Martin surveilled Richardson and saw him enter the Oak Grove Avenue residence.

Martin arranged for Mapp to present Richardson with the opportunity to exchange cocaine for two firearms supplied by a fictitious person from Vermont. On October 15, 2003, Mapp telephoned Martin; Mapp was with Richardson at the time he placed the call. During the conversation, the three men arranged a firearms-for-drugs deal between Martin and Richardson. Through Mapp, Richardson stated he was looking for two nine-millimeter handguns in exchange for an ounce of cocaine base. The tape recording of the October 15th phone call reflects that Richardson said: "Nines, get a couple of nines;" "He can get me the baby nine and a regular nine;" "I'm ready right now;" and "Tell him, listen, tell him to bring two nines. I'm gonna take both of them." Richardson then agreed with Martin to trade one ounce of cocaine base for two nine-millimeter handguns.

Martin arranged a meeting between Mapp, Richardson, and Special Agent Malcolm Van Alstyne of the ATF. Van Alstyne would play the role of the Vermont firearms supplier. The meeting, originally scheduled for October 23, 2003, eventually took place on October 30, 2003. During the meeting, Richardson gave Van Alstyne the cocaine base. Van Alstyne passed the two firearms to Richardson and then handed him a shirt in which to wrap them. Van Alstyne then exited the vehicle, ostensibly to put the cocaine base in the trunk and to get bullets for Richardson. Richardson and Mapp also exited the vehicle. At that point, Van Alstyne gave the arrest signal, and agents arrested Richardson as he stood outside the vehicle holding the firearms. Agents also staged a mock arrest of Mapp in order to conceal his identity as a confidential informant. Crime lab testing later revealed that the narcotics Richardson gave to Van Alstyne contained 26.4 grams of cocaine base.

After the arrest, Martin and DEA Agent John Barron interviewed Richardson, who waived his Miranda rights and agreed to speak with the agents. Richardson told the agents that the firearms were for Mapp, not for him; he admitted that the cocaine base belonged to him. Richardson expressed a desire to cooperate with the government but stated that he could not reveal his drug supplier at that time. When asked again about the firearms, Richardson stated, "[T]hose guns were for ATF. They weren't for me."¹ Agents expressed disbelief in his statements and confronted him with the telephone recordings in which he talked about wanting the firearms.

At that point, Richardson became upset and evasive. The agents, therefore, decided to wait until a later time to do the interview and terminated the interrogation. The next day, Martin and DEA task force detective Norman Shink of the Springfield Police Department advised Richardson of his Miranda rights and resumed the interview. In an effort to cooperate with law enforcement, Richardson named four or five people involved in the drug trade in the area.

C. Pretrial

Prior to trial, Richardson moved to suppress the drug evidence seized during the September 25th traffic stop and to sever Counts One and Two from Counts Three and Four for trial purposes. Richardson contended that the September 25th search of his vehicle violated his Fourth Amendment rights. Regarding severance, he argued that joinder was improper and prejudicial. He stated that a joint trial would force him to cede his Fifth Amendment right against self-incrimination with respect to Counts One and Two in order to exercise his Sixth Amendment right to testify as to Counts Three and Four. Richardson offered an affidavit summarizing the testimony he had to give regarding...