         10-5168-cr(L)
         United States v. Lucas, Richardson

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 15th day of February, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                SUSAN L. CARNEY,
 8                         Circuit Judges,
 9                ROSLYNN R. MAUSKOPF,
10                         District Judge.*
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                     Appellee,
17
18                      -v.-                                         10-5168-cr(L),
19                                                                   11-356-cr(CON)
20
21       JON LUCAS, LAMAR RICHARDSON,
22
23                                     Defendants-Appellants.
24
25
26
27
28
29

                *
                The Honorable Roslynn R. Mauskopf, of the United States
         District Court for the Eastern District of New York, sitting by
         designation.
 1   FOR APPELLANT
 2   Jon Lucas:         ROBERT G. SMITH, Assistant Federal Public
 3                      Defender (Jay S. Ovsiovitch, Assistant
 4                      Federal Public Defender, on the brief),
 5                      Western District of New York, Rochester,
 6                      NY.
 7
 8   FOR APPELLANT
 9   Lamar Richardson: MAURICE J. VERRILLO, Law Office of
10                     Maurice J. Verrillo, P.C., Rochester, NY.
11
12
13   FOR APPELLEE:      JOSEPH J. KARASZEWSKI, Assistant United
14                      States Attorney (Alexander J. Anzalone,
15                      Student Law Clerk, on the brief), for
16                      William J. Hochul, Jr., United States
17                      Attorney for the Western District of New
18                      York, Buffalo, NY.
19
20        Appeal from the United States District Court for the
21   Western District of New York (Siragusa, J.).
22
23       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

24   AND DECREED that the judgments of the district court be

25   AFFIRMED.

26       Defendants-Appellants Jon Lucas and Lamar Richardson

27   (“Defendants”) appeal from respective judgments of

28   conviction, following a jury trial in the United States

29   District Court for the Western District of New York

30   (Siragusa, J.).   Defendants were convicted of drug-

31   trafficking related offenses, and Richardson was convicted

32   of an additional firearm offense.   We assume the parties’

33   familiarity with the underlying facts and procedural history

34   of the case.

                                   2
1        Defendants first challenge the district court’s denial

2    of their pretrial suppression motions on the basis that the

3    police lacked probable cause to believe that they were

4    engaged in a drug-trafficking crime.       When examining a

5    ruling on a motion to suppress, “we review a district

6    court’s findings of historical fact for clear error, but

7    analyze de novo the ultimate determination of such legal

8    issues as probable cause.”   United States v. Gagnon, 373

9    F.3d 230, 235 (2d Cir. 2004).       “Probable cause exists if a

10   law enforcement official, on the basis of the totality of

11   the circumstances, has sufficient knowledge or reasonably

12   trustworthy information to justify a person of reasonable

13   caution in believing that an offense has been or is being

14   committed by the person to be arrested.”       Id. at 236.

15   Information from an informant may be sufficiently reliable

16   to support a probable cause finding if the informant “has a

17   track record of providing reliable information, or if it is

18   corroborated in material respects by independent evidence.”

19   United States v. Wagner, 989 F.2d 69, 72-73 (2d Cir. 1993).

20       Having conducted an independent review of the record in

21   light of these principles, we conclude that the police had

22   probable cause as a matter of law to believe that Defendants


                                     3
1    were engaged in drug-trafficking and possessed a firearm in

2    furtherance thereof for substantially the same reasons

3    stated by the district court in its Decision and Order.

4        Defendants also contend that the police officers’

5    warrantless entry into the apartment was not justified by

6    exigent circumstances.    We will not reverse a district

7    court’s determination as to whether exigent circumstances

8    existed unless it is clearly erroneous.     United States v.

9    MacDonald, 916 F.2d 766, 769 (2d Cir. 1990) (en banc).      The

10   exigent circumstances inquiry “is an objective one that

11   turns on . . . the totality of circumstances confronting law

12   enforcement agents in the particular case.”     Id.   “The core

13   question is whether the facts, as they appeared at the

14   moment of entry, would lead a reasonable, experienced

15   officer to believe that there was an urgent need to render

16   aid or take action.”     United States v. Klump, 536 F.3d 113,

17   117-18 (2d Cir. 2008) (citations and internal quotation

18   marks omitted).

19       We agree with the district court that the objective

20   circumstances at the time of the officers’ entry would cause

21   a reasonable officer to believe that there was an urgent

22   need to take action inside the apartment.     Indeed, when the


                                     4
1    apartment door opened the second time, the shotgun that had

2    been aimed at Officer Klein moments earlier was no longer in

3    view.   Moreover, despite Officer Klein’s order that

4    Defendants come out of the apartment, they remained inside.

5    We find no difficulty in concluding that an urgent need to

6    enter the apartment existed because the officers did not

7    know if there were other individuals in the apartment who

8    might be armed and pose a threat to their safety.      See

9    United States v. Zabare, 871 F.2d 282, 289 (2d Cir. 1989).

10       Contrary to Lucas’s assertion, Officer Klein did not

11   create the exigency by not identifying himself as a police

12   officer when he conducted the “knock and talk.”     Officer

13   Klein did not threaten to engage in conduct that violates

14   the Fourth Amendment because he made no threat to enter the

15   apartment when he conducted the “knock and talk.”      See

16   Kentucky v. King, 131 S. Ct. 1849, 1858 & n.4 (2011).

17   Richardson’s argument that Officer Klein violated the “knock

18   and announce” rule is not only waived–he did not raise it

19   until his reply brief, see Norton v. Sam’s Club, 145 F.3d

20   114, 117 (2d Cir. 1998)—but also wholly without merit.        We

21   have considered Defendants’ remaining arguments related to

22   this issue and find them, likewise, to be without merit.


                                   5
1    Accordingly, the district court did not err in concluding

2    that exigent circumstances justified the officers’

3    warrantless entry.     Thus we find no error with the district

4    court’s ultimate decision to deny Defendants’ suppression

5    motions.

6         Richardson also contends that the district court erred

7    in failing to instruct the jury that it must acquit him of

8    the charge of possessing a firearm in furtherance of drug-

9    trafficking if the government failed to disprove beyond a

10   reasonable doubt that he possessed the firearm for self-

11   defense.     We review the propriety of jury instructions de

12   novo.    United States v. Naiman, 211 F.3d 40, 50 (2d Cir.

13   2000).     “A jury instruction is erroneous if it misleads the

14   jury as to the correct legal standard or does not adequately

15   inform the jury on the law.”     United States v. Walsh, 194

16   F.3d 37, 52 (2d Cir. 1999) (internal quotation marks

17   omitted).

18        The district court properly refused to give the

19   requested jury instruction because the instruction would

20   have misled the jury as to the correct legal standard under

21   18 U.S.C. § 924(c)(1)(A).1    We agree with several of our

          1
            Richardson was charged with violating 18 U.S.C.
     § 924(c)(1)(A)(ii), which provides in relevant part:

                                     6
1    sister circuits and conclude that self-defense is irrelevant

2    to a Section 924(c) violation.     See, e.g., United States v.

3    Sloley, 19 F.3d 149, 153 (4th Cir. 1994); United States v.

4    Johnson, 977 F.2d 1360, 1378 (10th Cir. 1992); United States

5    v. Poindexter, 942 F.2d 354, 360 (6th Cir. 1991).       Indeed,

6    even if Richardson kept the shotgun for protection, he still

7    could be convicted under § 924(c)(1)(A) if he possessed it

8    in furtherance of drug-trafficking.     See United States v.

9    Potter, 630 F.3d 1260, 1261 (9th Cir. 2011).      Accordingly,

10   the district court properly rejected Richardson’s request

11   for a self-defense instruction.

12       Finally, Richardson contends that there was

13   insufficient evidence to support his conviction.      We review

14   sufficiency challenges de novo.    United States v. Andino,

15   627 F.3d 41, 49 (2d Cir. 2010).     “It is well-established

16   that a defendant challenging the sufficiency of the evidence

17   bears a heavy burden.”   United States v. Rojas, 617 F.3d



         [A]ny person who, during and in relation to any crime of
         violence or drug trafficking crime . . . for which the
         person may be prosecuted in a court of the United States,
         uses or carries a firearm, or who, in furtherance of any
         such crime, possesses a firearm, shall, in addition to
         the punishment provided for such crime of violence or
         drug trafficking crime—if the firearm is brandished, be
         sentenced to a term of imprisonment of not less than 7
         years[.]

                                    7
1    669, 674 (2d Cir. 2010) (internal quotation marks omitted).

2    We must view the evidence in the light most favorable to the

3    government and “uphold the jury’s verdict as long as any

4    rational trier of fact could have found the essential

5    elements of the crime beyond a reasonable doubt.”      Id.

6    (internal quotation marks omitted).

7        Richardson cannot meet this heavy burden.   There was

8    more than ample proof from which the jury could conclude

9    that he participated in a conspiracy to distribute cocaine

10   and to maintain a premises for the purpose thereof.     “In

11   assessing the sufficiency of the evidence in the context of

12   a conspiracy conviction, deference to the jury’s findings is

13   especially important because a conspiracy by its very nature

14   is a secretive operation.”   Rojas, 617 F.3d at 674 (internal

15   quotation marks and ellipses omitted).   Jeffrey LaFond’s

16   testimony alone established that Richardson was present in

17   the apartment when Lucas sold crack to LaFond, and that

18   Richardson aimed a shotgun at LaFond during the transaction.

19   A rational trier of fact could have drawn the inference that

20   Richardson knew of the scheme to sell cocaine from the

21   apartment and knowingly joined in the scheme.   That

22   testimony, likewise, was sufficient to support Richardson’s


                                   8
1    conviction for maintaining a premises for the purpose of

2    distributing cocaine.

3        Finally, Richardson’s challenge to his firearm

4    conviction is meritless because he attacks the sufficiency

5    of the conviction solely on the basis that the government

6    failed to prove the underlying drug-trafficking convictions.

7    In any event, LaFond’s testimony that Richardson aimed a

8    shotgun at LaFond during a drug transaction was sufficient

9    to support the conviction.     After a thorough review of the

10   evidence presented at trial, we conclude that Richardson’s

11   sufficiency challenge fails.

12       We have considered Defendants’ remaining arguments and

13   find them to be without merit.      For the foregoing reasons,

14   the judgments of the district court are hereby AFFIRMED.

15
16                                FOR THE COURT:
17                                Catherine O’Hagan Wolfe, Clerk
18
19




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