United States v. Richardson, s. 13–2655

• Decision Date: 13 July 2015
• Docket Number: 13–2656.,Nos. 13–2655,s. 13–2655
• Citation: 793 F.3d 612
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Frank RICHARDSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

793 F.3d 612

UNITED STATES of America, Plaintiff–Appellee

v.Frank RICHARDSON, Defendant–Appellant.

Nos. 13–2655

13–2656.

United States Court of Appeals, Sixth Circuit.

Argued: March 6, 2015.

Decided and Filed: July 13, 2015.

ARGUED:Richard A. Cline, Cline, Mann & Co., LLC, Powell, Ohio, for Appellant. Shane Cralle, United States Attorney's Office, Detroit, Michigan, for Appellee. ON BRIEF:Richard A. Cline, Cline, Mann & Co., LLC, Powell, Ohio, for Appellant. Shane Cralle, United States Attorney's Office, Detroit, Michigan, for Appellee.

Before: COLE, Chief Judge; MOORE and CLAY, Circuit Judges.

OPINION

CLAY, Circuit Judge.

Defendant Frank Richardson appeals from the December 4, 2013 judgments of the United States District Court for the Eastern District of Michigan sentencing him to 1,494 months of incarceration for committing five counts of armed robbery in violation of 18 U.S.C. § 1951(a), five counts of using a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c), and one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). On appeal, Richardson challenges the district court's denial of his motion to dismiss on speedy trial grounds, as well as the district court's evidentiary rulings, jury instructions, and sentence imposed.

For the reasons set forth below, we AFFIRM the judgments of the district court.

BACKGROUND

A. Procedural History

This appeal relates to two separate cases that were consolidated for the purposes of trial, Case No. 2:10–cr–20397 (“Case 1”) and Case No. 2:11–cr–20444 (“Case 2”).

In the Case 1 indictment, filed on August 10, 2010, Richardson was charged with four counts of interference with commerce by robbery in violation of 18 U.S.C. § 1951(a), four counts of using a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c), and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Richardson was arraigned on August 19, 2010 and pleaded not guilty to all counts.

The Case 2 indictment, filed on July 12, 2011, charged Richardson with one count of interference with commerce by robbery in violation of 18 U.S.C. § 1951, and one count of using a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). Richardson was arraigned on April 5, 2012, approximately nine months after his indictment. He pleaded not guilty to both counts.

The district court issued an order consolidating the two cases on February 26, 2013, and Richardson's trial began on June 11, 2013. Nearly three years elapsed between Richardson's Case 1 indictment and the beginning of trial. During this time, two attorneys assigned to represent Richardson withdrew, and the parties engaged in “extensive pre-trial pleadings, status conferences, and motions.” Richardson's Br. at 5. At trial, the government called as witnesses a number of law enforcement officers, as well as patrons and employees of the burglarized stores who had been present during the robberies. The government also called three individuals who had allegedly participated in the robberies with Richardson.

On June 28, 2013, a jury found Richardson guilty on all counts. Richardson was sentenced to 210 months of imprisonment for each count of interference with commerce by robbery, respectively, and 120 months of imprisonment for being a felon in possession of a firearm, to be served concurrently. In addition, Richardson was sentenced to 84 months of imprisonment for one § 924(c) count and 300 months of imprisonment for the other four § 924(c) counts, respectively, to be served consecutively to each other and the other sentences, as mandated by § 924(c)(1)(D)(ii). Altogether, Richardson was sentenced to 1,494 months of imprisonment. Richardson timely appealed.

B. Factual History

Richardson was convicted of participating in the armed robbery of five stores in and around Detroit, Michigan between February 22, 2010 and May 28, 2010. The stores were all robbed at gunpoint during business hours. In each instance, the robbers wore masks and gloves and stole electronics, primarily cellular telephones. At least one robber was armed during each robbery. Richardson never entered any of the stores during the commission of the robberies. Instead, he planned the robberies, provided supplies, and served as a lookout while they were taking place. The following facts are based on witness testimony at trial.

1. First Robbery

On February 22, 2010, Richardson and four other men robbed a T–Mobile store in Detroit, Michigan. Richardson coordinated the robbery with Jerome Andrews (his nephew), Derick Shirley, Derrick Bivens, and Tevin Bivens. In preparation for the robbery, Richardson and Shirley purchased plaid laundry bags to carry the stolen merchandise. Richardson then drove to pick up the other men in his SUV. On the ride, he provided the men with masks and gloves to wear, as well as at least one firearm. When they arrived at the store, Shirley and Richardson stayed in the vehicle to act as lookouts, while Andrews, Derrick Bivens, and Tevin Bivens executed the robbery.

Upon entering the store, Derrick Bivens displayed his firearm and ushered the employees and customers to the back storage room at gunpoint. The other men collected approximately thirty phones in the laundry bags that Richardson had purchased with Shirley. During the robbery, Richardson called Derrick Bivens to confirm that there was no cause for concern outside. Once the robbery was completed, all of the men returned to Richardson's SUV and drove back to Richardson's mother's house. Richardson subsequently sold the stolen phones to a contact of his and split the proceeds among the men.

2. Second Robbery

Eight days after the first robbery, on March 3, 2010, the men robbed another T–Mobile store in Detroit, Michigan. Before the robbery, Richardson, Tevin Bivens, and Andrews stole a van, which they disguised to look like a security van. As with the first robbery, Richardson picked everyone up on the day of the robbery. They then procured masks, gloves, laundry bags, and guns, and Richardson dropped the men off at the stolen van. Richardson drove behind the van to the T–Mobile store in order to obscure the stolen van's license plate. The men parked the stolen van outside the store, and Richardson remained in his SUV.

Derrick Bivens and Shirley entered the store, with Bivens brandishing a gun, and stole a number of cellular phones. After the robbery, Richardson and the other men met at Richardson's house, where they unpacked the stolen phones. Richardson then directed Andrews to get rid of the stolen van, while Richardson departed to sell the phones to his contact.

3. Third Robbery

A month later, on April 3, 2010, the men robbed a Radio Shack in Detroit, Michigan. Richardson selected the store and determined when the robbery would occur. Because Shirley was not able to participate in this robbery, Richardson and Andrews recruited a man named Curtis Williams to take his place. Richardson once again supplied the masks, gloves, laundry bags, and firearms. The men drove to Radio Shack in a different stolen van while Richardson followed in his SUV. The store was crowded when they got there, so the men waited in the van until they got word from Richardson to begin the robbery. Derrick Bivens, Andrews, and Williams then entered the store brandishing weapons. They directed the employees and customers to the back of the store, collected telephones, and left in the van. They then gave the phones to Richardson, who sold them and split the proceeds with the other men.

4. Fourth Robbery

On May 8, 2010, the men robbed another T–Mobile store in Detroit, Michigan. As with the previous robberies, Richardson coordinated the logistics and provided masks, gloves, laundry bags, and guns. As before, the men drove in a different stolen van while Richardson followed behind in his SUV. When they arrived at the store, they noticed a woman struggling to open the door. In order to assess the situation, Richardson went to the door pretending to be a customer. An employee informed him that the store was experiencing a power outage and was closed. Richardson decided to proceed with the robbery, and the men convinced Shirley to go to the door without a mask, pretending to be a customer, in order to gain access to the store.

As soon as the employee opened the door to speak with Shirley, Shirley pushed the door open and commanded the employees to go to the back of the store. Andrews and Derrick Bivens then entered the store as well. During the course of the robbery, an employee approached the store from the outside, noticed Bivens stealing money from the cash register, and ran away. Upon seeing the employee, the robbers ran to the van and drove off. They eventually met to place their guns in a compartment in Richardson's SUV, and Richardson sold the phones and distributed the proceeds.

5. Fifth Robbery

On May 28, 2010, the men conducted the final robbery at a Radio Shack in Eastpointe, Michigan. This time, the participants were Richardson, Andrews, Tevin and Derrick Bivens, and a man named Montez Fails. As with the previous robberies, Richardson collected the men, who then drove to the store separately in a stolen vehicle while Richardson drove behind them in his SUV. Richardson gave Bivens a 9–millimeter semiautomatic handgun to use during the robbery. As he had done during the previous robberies, Richardson stayed in the SUV, and the men entered the store upon Richardson's signal. Once they were inside, the men moved the employees and customers to the back of the store. However, one employee was able to escape out of the back door undetected. The men gathered the phones and a television, then ran out the back door and drove away with Richardson following directly behind them.

As they were driving away from the store, the men were intercepted by members of Detroit's Violent Crime Task Force, who had been surveilling them throughout the...