IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30611

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DONALD RICHARDSON,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:13-CR-86-1

Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.

PER CURIAM:*

Donald Richardson appeals his jury trial conviction and 210-month 

prison sentence for distribution of cocaine base (crack). Richardson argues that 

(1) the indictment did not charge him with a federal crime and, therefore, the 

indictment was not sufficient to confer subject matter jurisdiction on the 

federal court; (2) the prosecution violated the Fifth Amendment’s double 

jeopardy clause; (3) the proceedings violated his Sixth Amendment rights 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 5, 2016

Lyle W. Cayce

Clerk

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under the confrontation clause; (4) the district court abused its discretion by 

giving a jury instruction regarding accomplice testimony; (5) the district court 

erred in not holding a hearing to investigate possible juror bias; (6) the district 

court abused its discretion by issuing a modified Allen1 charge to the jury

rather than declaring a mistrial; (7) the evidence was insufficient to support 

his conviction; and (8) the district court erred in sentencing him as a career 

offender. Richardson’s motion requesting that we take judicial notice of the 

video showing the polling of the jurors is DENIED.

Subject matter jurisdiction “can never be waived or forfeited,” United 

States v. Cotton, 535 U.S. 625, 630 (2002), therefore, allegations of defects may 

be raised at any time, see FED. R. CRIM. P. 12(b)(2), and are subject to de novo 

review, see United States v. Isgar, 739 F.3d 829, 838 (5th Cir. 2014). 

Richardson’s argument that the indictment did not charge a federal offense is 

reviewed for plain error because he did not raise it in the district court. See 

United States v. Partida, 385 F.3d 546, 554 (5th Cir. 2004). A plain error is a 

forfeited error that is clear or obvious and affects the defendant’s substantial 

rights. United States v. Ellis, 564 F.3d 370, 377 (5th Cir. 2009). When those 

elements are shown, we have the discretion to correct the error only if it 

“seriously affects the fairness, integrity, or public reputation of judicial 

proceedings.” Id. (internal quotation and citation omitted). 

Contrary to Richardson’s assertions, the indictment sufficiently charged 

a federal offense by charging him under 21 U.S.C. § 841(a)(1). See United 

States v. Daniels, 723 F.3d 562, 572 (5th Cir.), reh’g in part granted, 729 F.3d 

496 (5th Cir. 2013). Moreover, the indictment conferred subject matter 

jurisdiction to the district court by charging Richardson “with an offense 

against the United States in language similar to that used by the relevant 

 

1 Allen v. United States, 164 U.S. 492, 501 (1896).

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statute,” Isgar, 739 F.3d at 838 (internal quotation marks and citations 

omitted), such that it allowed Richardson to “prepare his defense” and “invoke 

the double jeopardy clause in a subsequent proceeding,” United States v. 

Hoover, 467 F.3d 496, 499 (5th Cir. 2006) (internal quotation marks and 

citations omitted).

As Richardson concedes, he did not raise the double jeopardy issue before 

the district court, and review is for plain error. See United States v. Njoku, 737 

F.3d 55, 67 (5th Cir. 2013). He argues that his conviction violated double 

jeopardy because identical charges were still pending in state court. Even 

assuming arguendo there is a “sham” prosecution exception to the dual 

sovereignty doctrine, he does not assert that the state has moved forward with 

prosecuting him, and his argument is without merit because double jeopardy 

had not attached prior to the start of his federal trial given that he has not yet 

been tried in state court. See United States v. Martin Linen Supply Co., 430 

U.S. 564, 569 (1977). Moreover, his argument that his federal prosecution was 

a “sham” controlled by state authorities is meritless given that no state 

prosecution has occurred. See United States v. Cothran, 302 F.3d 279, 285 (5th 

Cir. 2002).

Because Richardson did not raise his confrontation clause argument in

the district court, review is for plain error. See United States v. Acosta, 475 

F.3d 677, 680 (5th Cir. 2007). Richardson essentially complains that he was 

not able to cross examine a law enforcement official who played a major role in

the investigation of the case. However, the Government is not required to call 

every witness competent to testify and that includes law enforcement officers. 

See Clinigan v. United States, 400 F.2d 849, 851 (5th Cir. 1968). Moreover, the 

proceedings did not run afoul of Crawford v. Washington, 541 U.S. 36, 59 

(2004), because the jury did not hear any testimony from the official, nor did 

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the district court admit into evidence any reports or out of court testimonial 

statements made by the official.

Richardson asserts that the district court erred in giving a pattern jury 

instruction containing the definition of an accomplice because it misled the jury 

into to returning a guilty verdict. We review jury instructions for “abuse of 

discretion and harmless error.” United States v. Vasquez, 677 F.3d 685, 692 

(5th Cir. 2012). The district court charged the jury with instructions similar 

to Pattern Jury Instructions 1.14 and 1.15, which we have cited with approval. 

See 5TH CIR. PATTERN CRIM. JURY INSTR. §§ 1.14 and 1.15. The instructions 

correctly stated the law, and the use of the term “alleged accomplice” was 

supported by the facts, including testimony from Alton Celestine indicating

that Richardson was the supply source for Celestine’s own drug sales and that 

the two had established a relationship built around their drug transactions. 

See United States v. Fuchs, 467 F.3d 889, 901 (5th Cir. 2006).

According to Richardson, the district court erred by not conducting an in 

depth investigation into the prosecutor’s admission that it had learned that a 

juror was acquainted with a paralegal who worked in the prosecutor’s office. 

Evidentiary hearings are not required in every case where a juror may have 

been affected by an outside influence, and the trial court has “broad discretion” 

and “flexibility” to “handle such situations in the least disruptive manner 

possible.” United States v. Ramos, 71 F.3d 1150, 1153 (5th Cir. 1995). In the 

instant case, the district court was presented with information that a juror was 

acquainted with a paralegal working in the office but who was not in any way 

involved with Richardson’s prosecution and would not be appearing in court. 

This limited relationship did not require the district court to hold an 

evidentiary hearing as neither party alleged improper contact between the 

juror and the paralegal, jury tampering, or any other improper conduct. Cf. 

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United States v. Sylvester, 143 F.3d 923, 932 (5th Cir. 1998); United States v. 

Denman, 100 F.3d 399, 405 (5th Cir. 1996). Moreover, the record in the instant 

case does not support any bias, and Richardson does not allege any actual 

wrongdoing. His conclusional assertions and generalized speculations that the 

juror could have been biased are not sufficient to state a violation of his 

substantial rights. See Solis v. Cockrell, 342 F.3d 392, 395 (5th Cir. 2003).

Richardson additionally argues that the district court abused its 

discretion by not declaring a mistrial after the jury became deadlocked instead

of issuing a modified Allen charge. This court reviews the giving of an Allen

charge for abuse of discretion. United States v. Andaverde-Tinoco, 741 F.3d 

509, 515 (5th Cir. 2013). Richardson preserved his objection to the issuance 

and language of the Allen charge, but concedes that review of his objection to 

the district court providing a written copy to the jury is for plain error. See id.

The district court’s charge to the jury did not significantly deviate from 

the Allen charge approved by this court. See 5TH CIR. PATTERN CRIM. JURY 

INSTR. § 1.45 (2015). Accordingly, there is no prejudicial semantic difference 

between the given charge and the approved Allen charge. See United States v. 

Allard, 464 F.3d 529, 536 (5th Cir. 2006). The trial lasted approximately two 

days, and the jury deliberated for over six hours, during which times it sent 

three notes to the district court indicating that it was deadlocked. Under the 

totality of these circumstances, issuance of the Allen charge was not coercive. 

See United States v. Eghobor, 812 F.3d 352, 359 (5th Cir. 2015); United States 

v. Betancourt, 427 F.2d 851, 854 (5th Cir. 1970). Moreover, Richardson has not 

demonstrated that the district court plainly erred by giving the jury, at its 

request, a copy of the Allen charge. Cf. United States v. Fossler, 597 F.2d 478, 

483-85 (5th Cir. 1979).

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Richardson also argues that the district court erred in denying his 

motion for judgment of acquittal because there was not sufficient evidence to 

support his conviction. As Richardson preserved this issue, we consider the 

evidence presented in the light most favorable to the Government to determine 

whether a rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt. United States v. Lopez-Moreno, 420 F.3d 

420, 437-438 (5th Cir. 2005).

In order to prove the offense of conviction, the Government had to 

establish that Richardson knowingly distributed crack. § 841(a)(1); United 

States v. Sotelo, 97 F.3d 782, 789 (5th Cir. 1996). Celestine testified about his 

ongoing relationship with Richardson and stated that Richardson sold him 

crack on March 23, 2011. See ROA.701-30. Celestine’s testimony alone is 

sufficient to support the verdict. See United States v. Thompson, 735 F.3d 291, 

302 (5th Cir. 2013). In addition, Celestine’s testimony was corroborated by 

(1) testimony from several law enforcement officials who were involved in the 

controlled buy, (2) video recordings and photos of the transaction, and 

(3) expert testimony stating that a laboratory analysis had indicated that the 

substance purchased during the transaction was in fact crack. Richardson 

complaints about Celestine’s perceived lack of credibility are without merit as 

it is within the sole province of the jury to weigh the evidence and determine 

the credibility of the witnesses. See United States v. Grant, 683 F.3d 639, 642 

(5th Cir. 2012); United States v. Delgado, 256 F.3d 264, 273-74 (5th Cir. 2001).

In his final point of error, Richardson argues that the district court erred 

in enhancing his sentence based on his classification as a career offender under 

the Guidelines given that (1) his convictions did not qualify as crimes of 

violence, (2) the district court did not review the appropriate documents, and 

(3) the residual clause of U.S.S.G. § 4B1.2 is unconstitutionally vague in light 

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of Johnson v. United States, 135 S. Ct. 2551 (2015). Richardson did not raise 

these specific arguments before the district court; therefore review is for plain 

error only. See United States v. Herrera-Alvarez, 753 F.3d 132, 135-36 (5th Cir. 

2014). The career offender enhancement in U.S.S.G. § 4B1.1 applies in a 

controlled substance case like Richardson’s if, among other things, the 

defendant has at least two prior felony convictions for a crime of violence or a 

controlled substance offense. § 4B1.1(a). Richardson had two prior Louisiana 

armed robbery convictions and one simple robbery conviction, all three of 

which qualify as crime of violence under the use of force clause of § 4B1.2. See

LA. REV. STAT. ANN. §§ 14:64 & 14:65; United States v. Brown, 437 F.3d 450, 

452-53 (5th Cir. 2006). Given that Richardson’s prior simple robbery 

conviction and two armed robbery convictions qualify as crimes of violence for 

purposes of § 4B1.1(a), the district court did not plainly err by sentencing him 

as a career offender. See Brown, 437 F.3d 450, 452-53.

We need not address Richardson’s arguments regarding the district 

court’s use of the appropriate documents because the Government 

supplemented the record with the necessary documents. See United States v. 

Vargas-Soto, 700 F.3d 180, 183 (5th Cir. 2012). Furthermore, Richardson’s 

argument based upon Johnson is without merit as the district court did not 

rely on § 4B1.2(a)(2)’s residual clause.

Accordingly, the judgment of the district court is AFFIRMED.

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