U.S. v. Lott, 05-1713.
| Decision Date | 27 March 2006 |
| Docket Number | No. 05-1713.,05-1713. |
| Citation | 442 F.3d 981 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. JOHN A. LOTT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Richard H. Lloyd (argued), Office of the United States Attorney, Fairview Heights, IL, for Plaintiff-Appellee.
Carter C. Law (argued), Clayton, MO, for Defendant-Appellant.
Before WOOD, EVANS, and SYKES, Circuit Judges.
John A. Lott was convicted by a jury of being a felon in possession of a firearm and sentenced to 120 months in prison. Lott challenges the conviction, claiming that his Sixth Amendment right to an impartial jury was violated when a potential juror vouched for the credibility of a government witness during voir dire in the presence of the entire venire. Lott also appeals the district court's decision to admit evidence that he dealt in "dummy drugs," even though he was not charged with such a crime. We conclude that neither ground entitles Lott to a new trial and therefore affirm his conviction and sentence.
On June 28, 2003, Lott was driving a car that did not belong to him in the small town of Sparta, Illinois, when he was pulled over and arrested by local police officers David Dotson and Gary Steele on an outstanding warrant. In a search of the car incident to arrest, the officers discovered underneath the driver's seat a small loaded pistol on top of a plastic bag containing a white powdery substance. Later, back at the police station, Lott explained that the white powder was crushed Allegra, a prescription antihistamine commonly used to treat allergy symptoms, not (as Patrolman Dotson had suspected) cocaine. Although this let Lott off the hook on potential drug charges, he was not so lucky with respect to the gun. On October 22, 2003, a federal grand jury indicted him on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
Jury selection for Lott's trial began on March 8, 2004. During voir dire, the court asked whether members of the venire knew Officers Dotson and Steele. Prospective juror Randall Valleroy volunteered that he knew Steele and that they had worked together for over 20 years. Upon further questioning, Valleroy referred to Officer Steele as "a very honorable man," explained that his brother had worked for the Sparta police department and had described Steele as an "upright officer," and stated that he believed that Steele "would not purposely try to deceive anybody." Later, during jury selection, the court questioned Valleroy again, inquiring whether he would be able to test Officer Steele's credibility as a witness. Valleroy answered affirmatively, explaining:
Lott's counsel moved to strike Valleroy for cause, based on Valleroy's long acquaintance with Officer Steele and his strong statements in support of Steele's credibility. The court denied the motion, explaining that through his responses to the court's follow-up questions, Valleroy had "rehabilitate[d] himself" and "acknowledged that he clearly would test [Officer Steele's] credibility." At the same time, Lott's counsel expressed concern that Valleroy's "super vouch" for Steele had tainted the entire jury panel; nevertheless, she did not move to dismiss the venire on this basis.
In an unusual turn of events, it then came to light that Valleroy had known Lott's mother for many years, but had not realized the connection between her and the defendant because Lott's mother's surname was different from that of her son. Upon learning of this connection, the court immediately struck Valleroy from the jury pool.
The only contested issue at trial was whether Lott knowingly possessed the gun. The government argued that since the bag of white powder was underneath the gun, and Lott possessed and had knowledge of the contents of the bag, he must also have possessed the gun knowingly. Lott retorted that he was driving a car that did not belong to him and had no knowledge of the gun beneath his seat.
Because the bag of white powder was so central to the government's case, Lott also tried to prevent the government from introducing evidence related to the bag. His motion in limine and later objection at trial relied on Fed.R.Evid. 404(b), which, except for certain listed exceptions, prohibits introduction of evidence of "other crimes, wrongs, or acts ... to prove the character of a person in order to show action in conformity therewith." In particular, Lott wanted to prevent the government from using the following four items of evidence: (1) the actual bag of white powder, (2) Lott's post-arrest statement identifying the substance as Allegra, (3) Lott's ex-girlfriend's testimony about his dealing in "dummy drugs," and (4) the ex-girlfriend's testimony about his need to use the gun for protection. The district court denied the motion and later allowed the evidence to be admitted, explaining that the government was not seeking to introduce the evidence through an exception to Rule 404(b), but rather that Lott's possession of the crushed Allegra and his involvement in the sale of "dummy drugs" was "intricately related to [the firearm possession] crime, and therefore, direct evidence of the crime itself."
At trial, both Dotson and Steele testified. Dotson described his discovery of the bag of white powder as well as Lott's statement that the bag contained Allegra rather than cocaine. The government also called Lott's ex-girlfriend as a witness who testified (as predicted) that Lott told her that he carried the gun "for protection" because "he had ripped some people off" by selling them "dummy drugs." Lott did not testify and called no witnesses. In closing, Lott's counsel argued that the government had failed to prove beyond a reasonable doubt that Lott "knew that that gun was underneath the seat of that [] car and intended to and was able to exercise direction and control over that gun."
The jury convicted Lott of the single charge against him, and the...
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