United States v. Richardson

• Citation: 676 F.3d 491
• Decision Date: 30 March 2012
• Docket Number: No. 11–40244.,11–40244.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Dale Allen RICHARDSON, Jr., Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

676 F.3d 491

UNITED STATES of America, Plaintiff–Appellee,

v.Dale Allen RICHARDSON, Jr., Defendant–Appellant.

No. 11–40244.

United States Court of Appeals, Fifth Circuit.

March 30, 2012.

Renata Ann Gowie, Asst. U.S. Atty. (argued), Houston, TX, for Plaintiff–Appellee.

Derly Joel Uribe (argued), (Court–Appointed), Law Offices of Francisco J. Saldana, Jr., Laredo, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before JOLLY, DAVIS and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

A jury convicted Dale Allen Richardson, Jr. of two counts of corruptly endeavoring to obstruct the due administration of justice, in violation of 18 U.S.C. § 1503, and one count of knowingly making a materially false statement to a governmental agency, in violation of 18 U.S.C. § 1001. The district court sentenced Richardson to 65 months of imprisonment, followed by a three-year term of supervised release. Richardson challenges the sufficiency of the evidence supporting his three convictions; the district court's refusal to instruct the jury in accordance with his proposed jury instruction defining “corruptly” for purposes of 18 U.S.C. § 1503; and the district court's application of five enhancements to his offense level in calculating his guidelines range. We AFFIRM.

I.

A.

The following facts and evidence were brought to light during Richardson's trial. On April 13, 2010, a United States immigration judge ordered Jose Fernando Reyes removed from the United States to Mexico. Reyes waived his right to appeal the immigration judge's order; he was removed on April 26. Reyes's mother, Lazara Saucedo Martinez, learned from a friend that Richardson was an immigration attorney who could help her son. She visited his law office in the Dallas, Texas area and, under the belief he was an attorney, hired him to represent her son. Martinez testified she never paid Richardson a fee for representing her son, but she did agree to refer clients with immigration issues to him.¹

On May 12, 2010, Richardson entered his appearance as Reyes's attorney before the Board of Immigration Appeals, stating that he was admitted to practice in the Commonwealth of Massachusetts and the Cherokee Nation,² and filed an appeal of the immigration judge's order that had removed Reyes to Mexico. This latter action was done notwithstanding the fact that Reyes had already been removed from the country.

On or about June 1, 2010, Reyes reentered the United States. He was picked up by United States Border Patrol agents on June 3 and charged by criminal complaint with misdemeanor illegal reentry, in violation of 8 U.S.C. § 1325. On June 4, Reyes and Richardson appeared in the United States District Court, Southern District of Texas, Laredo Division, for Reyes's initial appearance hearing before United States Magistrate Judge J. Scott Hacker (“Judge Hacker”), in the criminal case captioned, United States v. Jose Fernando Reyes, No. 5:10–PO–3410. Before the hearing began, Richardson approached Judge Hacker's case manager, Debbie Flores, and indicated to her that he was representing Reyes. Flores then notified Judge Hacker that Richardson was a private attorney from Dallas and would be representing Reyes. She later reflected on the minute entry that “Attorney Richardson” appeared on behalf of Reyes. That day, Assistant United States Attorney Andy Guardiola (“AUSA Guardiola”) was handling the initial appearance hearings before Judge Hacker. Richardson approached AUSA Guardiola before the hearing began, handed AUSA Guardiola his business card,³ and stated that he was representing Reyes. He then advised AUSA Guardiola that Reyes had an appeal pending in immigration court and requested that the Government dismiss the misdemeanor illegal reentry charge so it would not affect the appeal.

When Judge Hacker called Reyes's case, as is customary, Richardson identified himself and advised the court that he was representing Reyes. Judge Hacker testified that, although Richardson never expressly stated he was an attorney, when an individual announces in court that he is “representing” a party, the judge and the other persons in the courtroom expect him to be an attorney licensed to practice in that state and jurisdiction. AUSA Guardiola informed Judge Hacker that he had been advised by Richardson that Reyes had an appeal pending in the immigration court. In order to further review those facts, AUSA Guardiola asked Judge Hacker to reset the initial appearance hearing. Judge Hacker obliged and reset the hearing for June 29, 2010. Upon learning that the case would be reset instead of dismissed, Richardson said something to the effect that dismissal was needed that day because Reyes had a court date in the removal matter and a reset would add another hurdle to that appeal. In response, AUSA Guardiola indicated that he would need to consult with his supervisor before taking action beyond the reset.

When asked about Richardson's courtroom demeanor that day, Judge Hacker testified that “a lot of things” Richardson did in court did not make sense. He explained that Richardson used legal terminology and conducted himself during arguments in such a way that Judge Hacker believed him to be confused. Because of his expectation, however, that Richardson was an attorney, Judge Hacker simply believed that Richardson was newly graduated from law school with no experience. Richardson's demeanor or actions never led Judge Hacker to believe Richardson was not a licensed attorney.

On June 29, 2010, Judge Hacker reconvened Reyes's initial appearance hearing. Richardson again appeared on Reyes's behalf, which was reflected in the minute entry. Judge Hacker asked counsel whether the case had been resolved or whether the Government planned to move forward. In response, Richardson said he needed to speak with Assistant United States Attorney Frank Pimental (“AUSA Pimental”), who was handling the cases that day. Judge Hacker agreed. After conferring, AUSA Pimental informed Judge Hacker that, after having spoken briefly with AUSA Guardiola and based on Richardson's representations about Reyes's appeal pending in the immigration court, the Government moved to dismiss the misdemeanor illegal reentry case. During questioning from Judge Hacker, AUSA Pimental revealed his understanding from Richardson that Reyes had entered into deferred adjudication on a felony drug charge, but prior to the end of the probationary period, the immigration judge had ordered Reyes removed to Mexico. Thus, there was some concern on the Government's part that Reyes's removal may have been improper, which would imperil the basis for the illegal reentry charge. As a consequence, the Government wanted to place Reyes back in status quo for his immigration appeal. Judge Hacker asked Richardson questions thereafter. Richardson never expressed any disagreement with AUSA Pimental's reasoning for moving to dismiss the illegal reentry case, and may have even nodded in agreement when AUSA Pimental explained his reasoning to the court.

Judge Hacker signed the order dismissing the illegal reentry case against Reyes on June 29. Before it could be filed and docketed, however, Judge Hacker was informed by the Clerk's Office that it could not verify that Richardson was a licensed attorney. Judge Hacker testified that he decided to withhold the order's filing for three reasons: (1) he did not know whether the U.S. Attorney's Office would still want to dismiss the case against Reyes considering it had based its decision to dismiss on representations from someone who may have misrepresented his identity; (2) he wanted the U.S. Attorney's Office to look into the matter; and (3) he thought the Government may want to hold Reyes as a material witness. Judge Hacker further testified that, even if the dismissal order had been filed, he would have rescinded the order until everything was resolved. Eventually, on July 12, 2010, the order dismissing the illegal reentry case against Reyes was filed with the Clerk's Office, only then terminating the case against him.

The Clerk's Office was aware of the irregularities with Richardson's license because on June 29, Richardson had given Flores a “motion and order for admission pro hac vice.”⁴ On the motion, Richardson had filled out the date; case caption; his name; and his firm's name (The Law Office of Dale A. Richardson), address, and telephone number. He had signed it, as well. He had indicated that he was an attorney licensed in the Commonwealth of Massachusetts and in the Cherokee Nation, and provided purported bar numbers for each jurisdiction. Richardson had submitted additional documentation with the motion and order, including: (1) a Cherokee Nation “attorney badge”; (2) a certificate from the American Bar Association (“ABA”); and (3) bar cards from the ABA, Massachusetts Bar Association (“MBA”), and Cherokee Nation Bar Association. Flores file-stamped the motion as received in court on June 29, 2010. Relying on the representations in the motion and order, Judge Hacker granted the motion and signed it before the Clerk's Office verified Richardson's license information out of concern that verification would require holding Reyes in jail for another 24 hours when the Government had already moved to dismiss the case. The motion was then sent to the Clerk's Office for verification.

As a general proposition, it should take only a few minutes for the Clerk's Office to verify an attorney's state and federal bar information, but when it received Richardson's motion, the Clerk's Office was unable to verify that he was licensed in Massachusetts based on the bar number he had provided. The Laredo Division Deputy Clerk, Kathy Johnson, contacted Richardson to ask whether he simply had provided an incorrect number. Richardson said no and gave her the same bar number. When she informed Richardson that she would have to inform Judge Hacker about...