* 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that this opinion should not be published and is not precedent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

June 20, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-30764

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALLEN RICHARDSON,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 01-CR-235-ALL-N

--------------------

Before DEMOSS, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Allen Richardson appeals his jury conviction of knowingly

possessing with intent to distribute 50 grams or more of crack

cocaine. Richardson argues that his federal prosecution violated

the double-jeopardy bar against multiple prosecutions because the

state prosecution against him was a sham. 

Double-jeopardy protection did not attach because no jury

was empaneled in the state-court proceedings. See United States

v. Juarez-Fierro, 935 F.2d 672, 675 (5th Cir. 1991). Moreover, 
No. 02-30764

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Richardson did not show that his case fell within the “sham

prosecution” exception to the “dual sovereignty” rule because he

did not bear his burden of proving that the state prosecution was

merely the tool of the federal Government. See United States v.

Logan, 949 F.2d 1370, 1379 n.16 (5th Cir. 1991).

Richardson also argues that the district court erred in

ruling that the identities of the confidential informants (CIs)

need not be revealed. The first step of our three-step test

weighs in favor of nondisclosure because the CIs’ involvement in

the transaction was minimal. See United States v. Orozco, 982

F.2d 152, 154-55 (5th Cir. 1993). The second step also weighs in

favor of nondisclosure because Richardson did not show that the

CIs’ information would significantly aid him in establishing an

asserted defense. See id. at 155. Because two prongs of this

circuit’s test support the district court’s determination that

disclosure was not warranted, the district court did not abuse

its discretion. See United States v. Cooper, 949 F.2d 737, 749-

50 (5th Cir. 1991). 

Richardson also argues that the district court abused its

discretion in admitting the CIs’ hearsay testimony because the

crucial issue at trial was whether Richardson intended to possess

crack cocaine. Arguably, the testimony in question points

directly at Richardson’s guilt in the crime and therefore is

inadmissible hearsay. See United States v. Evans, 950 F.2d 187,

191 (5th Cir. 1991). However, reversal is not appropriate
No. 02-30764

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because the inadmissible evidence did not have a substantial

impact on the jury’s verdict, given the evidence before the jury

and the court’s instruction to the jury regarding the hearsay

statement. Id.

Richardson also argues that the Government’s expert

witness’s testimony that the amount of cocaine discovered in his

car was consistent only with an intent to distribute was

inadmissible and an impermissible use of profile evidence. The

expert witness’s testimony is accurately characterized “as an

analysis of the evidence in the light of his special knowledge as

an expert in the area of narcotics trafficking,” and the district

court did not abuse its discretion in admitting his testimony. 

See United States v. Speer, 30 F.3d 605, 610 (5th Cir. 1994). 

Nor was the witness’s testimony an impermissible use of

“profile” evidence because the witness merely explained the

meaning of the physical evidence and did not address the issue of

identity. See id. at 610 n.3. 

Richardson further contends that that witness’s credentials

did not qualify him as an expert. The witness had over 27 years

of experience as a federal agent and had been involved in

approximately 1000 narcotics investigations, which made him

familiar with the conduct and methods of operation unique to the

drug-distribution business. The Government properly qualified

the witness as an expert by questioning him and eliciting
No. 02-30764

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responses as to his experience and qualifications. See United

States v. Buchanan, 70 F.3d 818, 832 n.17 (5th Cir. 1996). 

Richardson also argues that his right to compulsory process

was denied because of his inability to call the cocaine broker as

a witness because she invoked her right against selfincrimination. The record reflects that the broker was available

as a witness but that Richardson chose not to put her on the

stand in front of the jury because she had been told by her

counsel to invoke her Fifth Amendment privilege in response to

any questioning by the Government. Thus, Richardson’s compulsory

process rights were not violated, and Richardson’s argument

fails. See United States v. Griffin, 66 F.3d 68, 70 (5th Cir.

1995). 

Richardson also argues that the district court erred in

denying his mistrial motion made after the Government referred to

Richardson as a “drug dealer” during closing arguments because

there was no evidence that Richardson ever had sold drugs and was

not accused of distribution. The prosecutor’s remark was not

improper because evidence was admitted at trial from which the

prosecutor could fairly draw the inference that Richardson was a

drug dealer, and the district court did not abuse its discretion

in denying Richardson’s mistrial motion. See United States v.

Martinez, 616 F.2d 185, 187 (5th Cir. 1980)(per curiam). 

Richardson also argues that the district court erred in

instructing the jury that the Government only had to prove that
No. 02-30764

-5-

Richardson specifically intended to possess a controlled

substance and not specifically crack cocaine. Richardson’s

argument fails because the district court’s instruction

explaining that the jury need only find that Richardson possessed

a controlled substance correctly stated the law. See United

States v. Cartwright, 6 F.3d 294, 303 (5th Cir. 1993).

Richardson also argues that the district court should have

given an entrapment instruction because the Government had no

proof of Richardson’s criminal disposition. Richardson does not

argue that the Government induced him to commit the crime, and

the district court did not abuse its discretion in refusing to

give the requested instruction because there was not sufficient

evidence reasonably to find in favor of the defendant thereon. 

See United States v. Barnett, 197 F.3d 138, 142 (5th Cir. 1999). 

Richardson also argues that the evidence was insufficient as

a matter of law to prove beyond a reasonable doubt that he

specifically intended to possess cocaine base. The record

reveals that the CIs tipped the Drug Enforcement Administration

task force that a black male driving a black Maxima with a

certain license plate would arrive at the Park Royal apartments

to pick up cocaine. An agent observed Richardson, who was

driving the car in question, arrive at the apartments, get out of

his car empty-handed, go into the apartment complex, and return

carrying a bag. When marked police cars tried to pull Richardson

over, Richardson fled, first in his car and then on foot. The
No. 02-30764

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officers found $4,861 in cash, with $4,000 bundled into $1,000

bundles, and 123 grams of crack cocaine. 

The Government’s expert witness explained that possessing

123 grams of cocaine base was consistent with distribution

purposes and that the existence of four $1,000 bundles was

consistent with the sale of cocaine base for a price within the

market price range at the time Richardson was arrested. No

paraphernalia, such as crack pipes, were found to suggest that he

possessed the cocaine for his own use. Thus, considering all of

the evidence in the light most favorable to the Government,

including all reasonable inferences that can be drawn from the

evidence, a reasonable trier of fact could have found that the

evidence established all three elements of the crime beyond a

reasonable doubt. See United States v. Bermea, 30 F.3d 1539,

1551 (5th Cir. 1994). 

All of Richardson’s arguments on appeal lack merit. 

Consequently, Richardson’s argument that cumulative error

requires a remand fails. The district court’s judgment is

AFFIRMED.