                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-15-2007

USA v. Lott
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4968




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT



                                     No. 05-4968


                           UNITED STATES OF AMERICA

                                           v.

                                    AQUIL LOTT,

                                                   Appellant



                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                               (D. C. No. 04-cr-00786)
                       District Judge: Hon. Harvey Bartle, III


                       Submitted under Third Circuit LAR 34.1(a)
                                  on March 29, 2007


                Before: FISHER, JORDAN and ROTH, Circuit Judges

                           (Opinion filed: August 15, 2007)




                                       OPINION




ROTH, Circuit Judge:
       A jury found Aquil Lott guilty of one count of possession with the intent to distribute

more than five grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(B) (Count I); one count of carrying a firearm during and in relation to a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count II)1; and one count of

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count III).

Although he did not move for a judgment of acquittal, Lott now asks this Court to set aside

the jury’s verdict on Count II based on insufficiency of the evidence. In the alternative,

although he did not object to the jury charge, Lott asks for a new trial on Count II based on

the District Court’s allegedly erroneous instructions with regard to § 924(c)(1)(A). Finding

no plain error, we will affirm Lott’s conviction.

I. BACKGROUND

       At Lott’s trial, Philadelphia Police Officer Perry Betts testified that he saw Lott

engage in three illegal drug transactions during the evening of November 11, 2003, at the

corner of 17th and Latona Streets in Philadelphia.             While conducting plainclothes

surveillance with his partner, Officer Jeffrey Galazka, Officer Betts observed a heavyset

woman hand Lott cash in exchange for objects retrieved from a clear plastic bag that Lott

took from his jacket pocket. This transaction occurred approximately 10 feet from the



       1
       Count II of the indictment actually stated that Lott “knowingly possessed a
firearm . . . during and in relation to a drug trafficking crime . . ..” Indictment at 2 (emphasis
added). As will be discussed below, the word “possessed” should have been replaced with
the word “carried,” in order to precisely track the relevant statutory language of 18 U.S.C.
§ 924(c)(1)(A), but no objection has been presented and any error is harmless.

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officers’ surveillance vehicle. Later, Officer Betts observed Lott conduct two similar

transactions with two men. Officer Betts believed each of the transactions involved

narcotics. Officer Galazka accordingly radioed for backup assistance.

       Officer Betts testified that Lott fled the area when the backup officers arrived on the

scene. During the chase that ensued, Officer Betts saw Lott remove his jacket and throw it

to the ground. This occurred approximately 10 feet from where Officer Betts was positioned.

Officer Galazka and one of the backup officers, Sergeant William Torpey, also testified that

they saw Lott discard his jacket. Sergeant Torpey testified that he recovered, from the pocket

of Lott’s discarded jacket, a firearm magazine clip loaded with 13 live rounds and a clear

plastic bag containing 176 ziploc packets of crack cocaine. The net weight of the crack

cocaine recovered from Lott’s jacket was approximately 22.5 grams.

       Officer Galazka testified that he immediately started to chase Lott on foot when Lott

tried to flee. From a distance of approximately 35 feet, Officer Galazka saw Lott pull a

firearm from his waistband and throw it under a parked car. Officer Galazka’s view of Lott

at this time was clear and unobstructed. The street was lit by streetlights. Officer Galazka

saw the gun being tossed and also heard it hit the pavement. Because there were no civilians

in the immediate area who might pick up the discarded gun, Officer Galazka continued to

pursue Lott until he finally apprehended him in the backyard of a home on the 1400 block

of South 17th Street. The police seized $144.00 from Lott at the time of his arrest. The gun

that Lott had discarded was recovered. It was identified as a nine millimeter semi-automatic

pistol, loaded with 15 rounds in the magazine clip and one round in the chamber. The loaded

                                              3
magazine found in Lott’s jacket fit and functioned in the firearm that Lott had discarded.

       Detective Christopher Lee, who was qualified as an expert witness, testified that the

quantity of drugs in this case, their separate packaging, and Lott’s carrying of a firearm were

all factors that, in Detective Lee’s expert opinion, were consistent with drug dealing.

Detective Lee also testified that, because drug dealers sometimes are targets of robberies,

drug dealers carry firearms “to protect themselves, to protect their drugs, to protect their

reputation, ‘cause if you have a reputation of you’re out there selling drugs and you always

have cash and you don’t have a way to protect yourself, you’re gonna be robbed repeatedly.”

       During the defendant’s case, Barbara Baker, Lott’s mother, testified on her son’s

behalf. Among other things, she testified that she never had seen her son wear the jacket

which the police observed Lott discarding as he fled from them.

       The jury found Lott guilty on all counts. The District Court imposed a sentence of

120 months imprisonment on Counts I and III, to run concurrently, and 60 months

imprisonment on Count II, to run consecutively to the 120-month sentence, as required by

statute. This timely appeal followed.

II. DISCUSSION

       The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. This Court

has appellate jurisdiction under 28 U.S.C. § 1291.

       Because Lott did not preserve either issue now raised on appeal, we review both for

plain error. To establish plain error, Lott must prove that (1) there was error, i.e., a deviation

from a legal rule, (2) the error is clear under the law at the time of appellate review, and (3)

                                                4
the error affected substantial rights, i.e., affected the outcome of the proceedings. See

Johnson v. United States, 520 U.S. 461, 467-68 (1997); United States v. Olano, 507 U.S.

725, 732-35 (1993). If all three elements are established, we may exercise our discretion and

award relief, Johnson, 520 U.S. at 467, but only if the defendant is “actually innocent” or the

error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”

Olano, 507 U.S. at 736.

       We review the sufficiency of the evidence to support a conviction in the light most

favorable to the government. United States v. Stanisfield, 101 F.3d 909, 911 (3d Cir. 1996).

The court is required to sustain the conviction “if any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” United States v. Dent, 149

F.3d 180, 187 (3d Cir. 1998). This “particularly deferential” standard of review, id., is even

more deferential under plain error review, see United States v. Powell, 113 F.3d 464, 467 (3d

Cir. 1997).

       There is no doubt that the evidence presented at trial, as summarized above, is

sufficient to support Lott’s conviction on Count II, particularly under plain error review. The

only complication relates to an unfortunate discrepancy in the indictment which persisted

throughout these proceedings. Count II of the indictment charged that Lott “knowingly

possessed a firearm . . . during and in relation to a drug trafficking crime . . ..” This

allegation, however, did not track the statutory language. Under 18 U.S.C. § 924(c)(1)(A),

an offender either “uses” or “carries” a firearm “during and in relation to” a drug trafficking

offense, or “possesses” a firearm “in furtherance of” such an offense. As the facts of this

                                               5
case clearly demonstrate, the indictment should have charged Lott with carrying, rather than

merely possessing, a firearm during and in relation to a drug trafficking offense. The

imprecision in the indictment was replicated by the District Court in its charge to the jury.

       However, Lott never objected to this error, and he does not do so on appeal, i.e., he

does not argue that the term “possessed” should have been replaced with the term “carried.”

(Lott also does not argue that the phrase “during and in relation to” should have been

replaced with the phrase “in furtherance of.”) Rather, Lott argues that the District Court

failed to instruct the jury that a conviction under § 924(c)(1)(A) requires a showing of

possessing a firearm in relation to a drug trafficking crime, as opposed to simple possession

that happened to occur while drug transactions were being made. It is clear, however, that

the District Court adequately instructed the jury on the “in relation to” element of §

924(c)(1)(A).2

       Moreover, the government’s error in charging possession instead of carrying (and the

District Court’s reproduction of this error in its charge to the jury) was harmless, as the

evidence clearly supports Lott’s conviction on Count II for carrying a firearm during and in

relation to a drug trafficking crime. Cf. United States v. Tykarsky, 446 F.3d 458, 474 n.10

(3d Cir. 2006) (“‘Failure to allege the statutory elements will not be fatal provided that



   2
     Lott argues that the District Court failed to instruct the jury that a conviction under §
924(c)(1)(A) requires a showing of possessing a firearm in relation to a drug trafficking
crime, as opposed to simple possession that happened to occur while drug transactions were
being made. Our review of the jury charge, however, convinces us that the District Court did
adequately charge the jury on the “in relation to” element of § 924(c)(1)(A).

                                              6
alternative language is used or that the essential elements are charged in the indictment by

necessary implication.’”) (citing Gov’t of the Virgin Islands v. Moolenaar, 133 F.3d 246, 249

(3d Cir.1998)).

III. CONCLUSION

       For the foregoing reasons, we will AFFIRM the District Court’s judgment of

conviction. Lott’s pro se motion for leave to file a supplemental pro se brief is denied

pursuant to Local Appellate Rule 31.3.




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