“The indictment is defective on its face in that it does not contain any evidence to establish a prima facie case of the offense alleged in Count IV, and thus fails to state an offense,” said Michael Norita Evangelista, the defendant’s court-appointed attorney.
The U.S. Code criminalizes and prohibits the conduct of possessing firearms only as to individuals that are either “unlawful users” of or those “addicted” to controlled substances as defined in the Controlled Substances Act, Evangelista said.
He also cited a ruling of the U.S. Court of Appeals for the Ninth Circuit which stated that “to sustain a conviction…the government must prove…that the defendant took drugs with regularity, over an extended period of time, and contemporaneously with his purchase or possession of a firearm.”
Evangelista said “the indictment against Richards contained no evidence or even recitation that the defendant is an “unlawful user.”
As a matter of plain statutory interpretation, Evangelista said the term “unlawful user” is not applicable to his client as described in the indictment.
“He does not have a history or a pattern of repeated or regular use of a controlled substance. In fact, the factual allegations in the indictment are completely devoid of any information that establishes that Mr. Richards has a history of repeated or regular use of a controlled substance while he was in possession of a firearm. Clearly, Mr. Richards is outside of the ambit of the statutory definition of the term ‘unlawful user,’ ” Evangelista said.
Richards was also indicted on charges of conspiracy to distribute controlled substance, distribution of a controlled substance, and carrying a firearm during and in relation to a drug trafficking crime.
Richards has denied the charges and remains in custody after he surrendered to the U.S. Marshals Service following his indictment last October.
The court granted Richards’ request for a court-appointed investigator, with an authorized expense of $1,600.
His jury trial starts on Feb. 7, 2011.
The federal charges against Richards were similar to those filed against him in Superior Court.
Richards, 32, resigned from the police force on July 22, 2010.
Richards, who was off-duty at that time, and Belinda O. Omengkar, 38, were arrested last July by the CNMI Joint Drug Task Force for possession and trafficking of “ice.”
