1

The Honorable Donovan W. Frank, United States District Judge for the

District of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3472

___________

United States of America, *

*

 Appellee, *

*

v. * Appeal from the United States

* District Court for the 

Earnest Jesse Richardson, also * District of Minnesota.

known as Ernest Jesse Richardson, *

also known as Torrence C. Epps, * [PUBLISHED]

*

Appellant. *

*

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Submitted: June 23, 2005

Filed: November 4, 2005

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Before MELLOY, HEANEY, and GRUENDER, Circuit Judges.

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PER CURIAM.

Earnest Jesse Richardson was convicted following a jury trial on two counts:

being a felon in possession of a firearm and being a drug user or addict in possession

of a firearm. He was sentenced to 103 months’ imprisonment on each count, to be

served concurrently. On appeal, Richardson (1) challenges the district court’s1
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Richardson does not challenge the sufficiency of the evidence on either count.

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decision not to suppress evidence and statements; (2) claims his counsel was

ineffective; and (3) claims that his sentence improperly imposed penalties on

multiplicitous counts, pursuant to an unconstitutional guidelines scheme.2

 We affirm.

BACKGROUND

On September 18, 2002, at approximately 10:00 a.m., two Minneapolis Police

officers, Corporal Francisco Javier Porras and Officer Laura Hanks, were patrolling

a neighborhood in North Minneapolis. As the officers drove down Hillside Avenue

in their marked squad car, they saw a group of three men, including Richardson,

gathered on the corner a block away. When the men saw the squad car, they split up,

each walking in a different direction. The officers followed Richardson, who

repeatedly looked back at the squad car as he walked up Illion Avenue. He entered

the enclosed porch of a residence and knocked on the door. The officers stopped

their car across the street from the house, and Officer Hanks partially exited the

passenger side of the squad car and called to Richardson over the vehicle. At the

time, she was separated from Richardson by the car, street, and sidewalk. Corporal

Porras remained in the vehicle. 

Officer Hanks asked Richardson if he knew who lived in the house, and

Richardson responded that he had not done anything wrong. He then left the porch.

Corporal Porras, who was still sitting in the squad car, shouted to Richardson and

asked whether he knew the people that lived in the house. Richardson did not

respond. Officer Hanks asked Richardson if they could talk to him. Richardson

repeated that he had not done anything wrong and then sprinted between the houses

into the alley. 
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Miranda v. Arizona, 384 U.S. 436 (1968).

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Officer Hanks chased Richardson on foot while Corporal Porras followed in

the squad car. Porras saw Richardson jump over a chain link fence. While

attempting to intercept Richardson, Porras crashed the squad car, which Richardson

bolted around. A probation officer in the area, Joseph Longueville, saw Richardson

running toward him and moved to intercept him. At this point, Richardson

surrendered to the officers, and was placed in the back of the crashed squad car. 

Officer Hanks and another officer searched for contraband on the Illion Avenue

porch Richardson had entered earlier, as well as in the yard of the residence, but did

not find anything. Corporal Porras then searched the area near the yard of 1561

Hillside Avenue, a nearby residence, and found a wallet containing crack cocaine and

Richardson’s identification, as well as a firearm near the rear steps of the house.

With Richardson in the back of the squad car, the officers drove back to where

the items had been recovered to verify the addresses involved in Richardson’s attempt

to flee. While parked in front of 1561 Hillside Avenue, Richardson allegedly said

without prompting that he was responsible for the drugs but not the gun. He had not

received a Miranda3

 warning at the time. The next day, Richardson met with Sergeant

Granroos, who advised Richardson of his Miranda rights. Richardson waived his

rights and repeated the statements he had made the previous day, indicating that he

was responsible for the drugs but not the gun. 

Charges were filed against Richardson in state court. Richardson claimed that

he had been illegally seized prior to his flight from the police, and moved to have the

subsequently discovered evidence and statements suppressed. Ronnaye Riggins, the

resident of the house whose porch Richardson entered, testified that he was a friend

of Richardson’s and that Richardson was a frequent guest at the house. On

February 4, 2003, the state district court concluded that Richardson was illegally
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United States v. Blakely, 542 U.S. 296 (2004).

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seized during his pre-flight encounter with the police, and granted the defendant’s

motion to suppress. 

 On March 11, 2003, a federal grand jury returned a two-count indictment

charging the defendant with being a felon in possession of a firearm, in violation of

18 U.S.C. § 922(g)(1), and being a drug user or addict in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(3). Richardson again moved to suppress the evidence

and statements because he claimed his pre-flight encounter with the police was an

illegal seizure. He also argued that the federal court was bound by the state court’s

determination that he was illegally seized. The magistrate judge rejected these

arguments and recommended denying the motions to suppress; the Report and

Recommendation was adopted in its entirety by the district court. Two weeks later,

Richardson failed to appear for a mandatory drug test, a condition of his pretrial

release. He also failed to appear for his trial on July 21, 2003, and a warrant was

issued for his arrest. On December 10, 2003, Richardson was apprehended after

making a wrong turn down a one-way street in front of a police officer. When he was

searched, officers found crack cocaine and a crack pipe. 

At trial, Richardson stipulated that he was a felon, but did not stipulate as to

his status as a drug user or addict. The prosecution offered evidence that the

fingerprint of Richardson’s left ring finger was found on the gun recovered by

officers following Richardson’s flight. The jury convicted Richardson on both counts

of the indictment. 

At sentencing, Richardson argued, based on the recently issued Blakely4

opinion, that the guidelines were unconstitutional. The district court found that

Richardson had a criminal history category of V and that his total offense level was

24, resulting in a guidelines range of 92 to 115 months. The judge stated that his
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sentence would be unaltered if the guidelines were not mandatory. He then sentenced

Richardson to 103 months on each count, to be served concurrently, with three years

supervised release, and a mandatory special assessment of $100 for each count.

Richardson appeals to this Court claiming that: (1) his initial encounter with

the police was an illegal seizure and that all evidence subsequently obtained should

have been suppressed; (2) his statements made in custody should also be suppressed;

(3) evidence regarding Richardson’s failure to meet the conditions of his release was

irrelevant and should not have been presented to the jury; (4) he was denied effective

assistance of counsel; (5) his drug use and status as a felon should have been merged

for sentencing purposes; and (6) the case should be remanded for resentencing in light

of Booker. 

ANALYSIS

I. Illegal Seizure

The Fourth Amendment protects against unreasonable searches and seizures.

Not every encounter between a police officer and a citizen is an unreasonable seizure

under the Fourth Amendment. A seizure has occurred “[o]nly when the officer, by

means of physical force or show of authority, has in some way restrained the liberty

of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). “[M]ere police questioning

does not constitute a seizure.” Florida v. Bostick, 501 U.S. 429, 434 (1991). “‘[L]aw

enforcement officers do not violate the Fourth Amendment by merely approaching

an individual on the street or in another public place, by asking him if he is willing

to answer some questions.’” Id. (quoting Florida v. Royer, 460 U.S. 491, 497

(1983)). The court determines whether an encounter constitutes a detention or seizure

by determining whether, taking into account all the circumstances of the encounter,

the police conduct would have communicated to a reasonable person that he was not
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free to “‘ignore the police presence and go about his business.’” Id. at 473 (quoting

Michigan v. Chesternut, 486 U.S. 567, 569 (1988)).

Applying these principles to Richardson’s initial encounter with the officers,

Richardson was not seized at that time. The officers’ squad car stopped on the

opposite side of the street. One officer stepped out of the vehicle and called to

Richardson from over the top of the squad car. Neither officer displayed a weapon,

threatened physical force, or told Richardson to stop. They asked whether

Richardson knew who lived in the house, and whether they could talk to him. These

circumstances simply do not amount to a seizure under our circuit’s precedent. The

officers’ attempt to apprehend Richardson during his flight also did not amount to a

seizure. California v. Hodari D., 499 U.S. 621, 629 (1991) (holding that a suspect

who fled a police car was not seized when the police gave chase or shouted to him to

stop, but only when the police actually captured and restrained him). Thus,

Richardson had not been seized by the time he lost possession of his identification

and contraband.

Richardson further argues that his Fourth Amendment rights were violated by

the search that resulted in the discovery of the firearm and crack cocaine while he was

detained in the squad car. The district court held that Richardson had abandoned

those objects, and any expectation of privacy he maintained in the items was lost.

United States v. Chandler, 197 F.3d 1198, 1200 (8th Cir. 1999); see also United

States v. Davis, 103 F.3d 660, 671-72 (8th Cir. 1996) (recognizing that property may

be considered abandoned where it is discarded or disowned). We review that

decision for clear error, United States v. Segars, 31 F.3d 655, 658 (8th Cir. 1994), and

find none. Accordingly, we affirm the district court’s denial of Richardson’s motion

to suppress. 
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II. Statements Made in Custody

Richardson argues for the first time on appeal that his statements while in the

squad car should have been suppressed because he had not been advised of his

Miranda rights. Voluntary statements that are not the product of police questioning

or police action likely to produce an incriminating response are admissible. United

States v. McCoy, 200 F.3d 582, 584 (8th Cir. 2000). Whether specific conduct is

designed to produce an incriminating response is determined from the perspective of

the suspect, without regard for the actual intent of the police. We have held that a

factual description of the state of an investigation, without additional questioning or

coercion, is not an interrogation. See United States v. Allen, 247 F.3d 741, 765 (8th

Cir. 2001) (reversed on other grounds) (holding that informing a suspect that he had

been identified in a lineup was not in itself an interrogation).

Richardson’s interaction with the officers in the squad car was not the

functional equivalent of an interrogation because the officers were discussing the

evidence between themselves and did not elicit any information from Richardson.

Nor were the officers applying any indirect emotional pressure on Richardson to talk.

The words and actions of the police officers were not the type of actions the police

“should know are reasonably likely to elicit an incriminating response” from

Richardson. Rhode Island v. Innis, 446 U.S. 291, 301 (1980). 

III. Evidence of Post-Arrest Drug Use and Flight

At trial, the prosecution entered evidence that Richardson fled the police when

they attempted to apprehend him while he was on pretrial release. Richardson claims

that his evasive behavior, not giving his real name to officers and then fleeing, was

not relevant to the firearm charge before the jury, and that the evidence was
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prejudicial. The district court allowed the testimony as relevant to Richardson’s

consciousness of guilt. 

This evidence was probative on an essential element of the charges against

Richardson: that he was an addict or user of controlled substances. Richardson did

not stipulate to this fact, and the prosecution was therefore required to present

evidence of Richardson’s drug use. The evidence offered consisted of Richardson’s

failure to attend scheduled drug tests, his flight from the police, and the small amount

of cocaine found on his person when he was apprehended. The court found that the

flight and his failure to appear for mandatory drug tests showed a consciousness that

his drug use would be discovered if he were tested. Because this evidence is directly

relevant to an element of the crime charged, the district court did not abuse its

discretion by admitting it at trial. 

IV. Ineffective Assistance of Counsel

Richardson had four different defense attorneys during his trial, and claims that

they were collectively ineffective. Richardson points to numerous errors at the

suppression hearings and at trial. These claims are typically not heard on direct

appeal, and should be addressed in a § 2255 motion brought pursuant to 28 U.S.C. §

2255. United States v. Logan, 333 F.3d 876, 878 (8th Cir. 2003). Richardson does

not claim that any exception applies that would warrant considering his claim on

direct appeal.
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V. Sentencing Based on Drug Use and Felon Status

Richardson next argues that the counts of conviction for being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and being a drug user

in possession of a firearm, in violation of 18 U.S.C. § 922(g)(3), arose out of the same

act of firearm possession and, therefore, should have been merged at sentencing into

a single offense. Richardson was sentenced concurrently, but was assigned a $100

special assessment for each count. 

We review de novo the district court’s finding that Counts One and Two are

separate offenses. United States v. Walker, 380 F.3d 391, 393 (8th Cir. 2004). In

United States v. Peterson, 867 F.2d 1110, 1115 (8th Cir. 1989), abrogated on other

grounds by Horton v. California, 496 U.S. 128 (1990), we held that separate

convictions under § 922(g)(1) and § 922(g)(3) arising out of a single act of firearm

possession were not multiplicitous. See Walker, 380 F.3d at 394. Guided, as we are,

by the decision of an earlier panel, see United States v. Peltier, 276 F.3d 1003, 1006

(8th Cir. 2002), we must affirm the imposition of separate sentences for each count

of conviction. 

VI. Booker

Richardson was sentenced after Blakely, and he challenged the constitutionality

of the guidelines at his sentencing hearing. The district court rejected his challenge,

but stated that the sentence would be the same, 103 months, if the guidelines were

found to be unconstitutional. While it was error to sentence under the mandatory

guidelines regime, the government has shown that the error was harmless because the

court stated it would have imposed the same sentence under an advisory scheme. See

United States v. Thompson, 403 F.3d 533, 536 (8th Cir. 2005).
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CONCLUSION

For the reasons cited above, we affirm.

MELLOY and HEANEY, Circuit Judges, Concurring.

We concur in the majority’s opinion because we agree that United States v.

Peterson, 867 F.2d 1110 (8th Cir. 1989), directly controls on the facts of the present

case. We write separately to note our disagreement with Peterson. We do not believe

a defendant should be subjected to multiple convictions and multiple punishments

under § 922(g) for a single act of possession that involves a firearm and ammunition.

Id. at 1115. We also do not believe a defendant such as Mr. Richardson, who satisfies

more than one defendant characteristic subsection of § 922(g), should be subjected

to multiple convictions for the possession of a single firearm. Id. Unless and until

our en banc court overrules Peterson, however, we are bound to uphold multiple

convictions and multiple punishments in cases such as these.

In United States v. Walker, 380 F.3d 391, 394 (8th Cir. 2004) , a panel of our

court applied Peterson to hold that a convicted felon’s possession of a firearm and

ammunition for that firearm comprised two separate offenses. In so holding, we

noted a conflict between Peterson and two earlier Eighth Circuit cases, United States

v. Powers, 572 F.2d 146 (8th Cir. 1978), and United States v. Kinsley, 518 F.2d 665

(8th Cir. 1975). In those earlier cases, panels of our court held that the simultaneous

possession or receipt of multiple firearms could only result in a single conviction and

punishment. Powers, 572 F.2d at 150-52; Kinsley, 518 F.2d at 670. In Walker, we

concluded that we were bound to apply Peterson because Peterson was directly on

point and the earlier cases had been decided under different firearms statutes.

Walker, 380 F.3d at 395. 
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We noted in Walker that all other circuits had addressed the issue and reached

the opposite result. Id. at 393. The conflict between Peterson and the earlier Eighth

Circuit cases and the conflict between Peterson and the opinions from the other

circuits arose largely because the court in Peterson had applied the “same elements”

test from Blockburger v. United States, 284 U.S. 299, 304 (1932), to find that §

922(g) permitted multiple convictions. The other circuits, like the panels in Powers

and Kinsley had applied the “unit of prosecution” test from Bell v. United States, 349

U.S. 81, 81 (1955), to conclude that Congress intended the “allowable unit of

prosecution” to be an incident of possession regardless of whether a defendant

satisfied more than one § 922(g) classification, possessed more than one firearm, or

possessed a firearm and ammunition. We believe that the position adopted by the

other circuits is correct and should be the law in our circuit. See, e.g., United States

v. Munoz-Romo, 989 F.2d 757, 759 (5th Cir. 1993) (“We are satisfied that Congress

intended to describe only a single crime that could be committed by seven types of

offenders. Thus, the Blockburger rule is not controlling.”).

Although the government today argues that multiple convictions are permitted

for a single act of possession, it has taken the opposite position before other courts,

including the Supreme Court. In United States v. Munoz-Romo, 947 F.2d 170, 176

(5th Cir. 1991), the Fifth Circuit held that convictions under § 922(g)(1) (felon in

possession) and § 922(g)(5) (illegal alien in possession) based on a single instance

of possession were not multiplicitous. When the defendant in that case petitioned the

Supreme Court to grant certiorari, the Solicitor General confessed error and asked the

Supreme Court to remand to the Fifth Circuit to vacate one of the two convictions.

The Supreme Court granted certiorari, vacated the Fifth Circuit’s judgment and

remanded for further consideration. 

On remand, the Fifth Circuit quoted from the Solicitor General’s brief to the

Supreme Court. Munoz-Romo, 989 F.2d at 759. Before the Supreme Court, the
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The Solicitor General’s position was essentially the same as that of the

Eleventh Circuit in United States v. Winchester, 916 F.2d 601 (11th Cir. 1990). In

that case, the Eleventh Circuit noted that if a court were to permit multiple

convictions for a single act of possession under § 922, “a convicted felon who is also

a fugitive from justice, a drug addict, a ‘mental defective,’ and an illegal alien could

be sentenced to five consecutive terms of imprisonment for the same incident, namely

the possession of a firearm.” Id. at 607. In the Eighth Circuit, because

Peterson would also permit separate convictions based upon the possession of

ammunition, a single incident of possession that involved a loaded weapon or a

defendant in possession of a firearm with a single bullet in his or her pocket, could

result in ten or more punishments for the same incident. We do not believe Congress

intended such a result.

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Solicitor General argued that the structure and language of the statute demonstrated

“Congress’s clear intent not to impose cumulative punishments when the same

incident violates two subdivisions of subsection (g).” Id. (quoting the government’s

brief to the Supreme Court).5

 The Fifth Circuit adopted the position urged by the

defendant and the government and directed the district court to vacate one of the

convictions. Id. The government’s position and the result achieved in the Fifth

Circuit are completely at odds with the government’s position in the present case.

Suffice it to say, we are concerned by the government’s inconsistent approach

in its interpretation of § 922(g). While it is fundamental that a party may advance

arguments in the alternative, we do not believe that, as a general matter, it is

appropriate for the government to advance diametrically opposed theories as to the

interpretation of a single criminal statute. This is especially true in the present

context, where the government’s change of position effectively caused the Supreme

Court to forgo the opportunity to review a circuit split on an issue of constitutional

significance. Nevertheless, because our court has not addressed this issue en banc,

we are bound by Peterson and we concur.

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