United States v. Lott

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 8, 2003
• Docket: 02-10424
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 8, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk ____________________

No. 02-10424 ____________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

ANDRECO LOTT; CEDRICK DIGGS

Defendants - Appellants

_________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas No. 4:01-CR-177-A _________________________________________________________________

Before KING, Chief Judge, and REAVLEY and STEWART, Circuit Judges.

PER CURIAM:*

Following a two-day trial, Andreco Lott was convicted of

conspiracy to commit bank robbery, two counts of bank robbery,

two counts of conspiracy to obstruct interstate commerce by

robbery, and four counts of using and carrying a firearm during a

crime of violence. The same jury convicted Cedrick Diggs of

three counts of conspiracy to obstruct interstate commerce by

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. robbery and three counts of using and carrying a firearm during a

crime of violence. Lott and Diggs appeal their respective

judgments of conviction, and Diggs appeals his sentence. For the

following reasons, we affirm.

Lott and Diggs first assert that the district court erred by

denying their motions for judgment of acquittal because the

Government did not provide sufficient evidence to prove that each

of the alleged offenses occurred in the Northern District of

Texas. It is well-established in this circuit that the

“prosecution need only show by a preponderance of the evidence

that the trial is in the same district as the criminal offense.”

E.g., United States v. Turner, 586 F.2d 395, 397 (5th Cir. 1978).

This court’s decision in United States v. Perrien, 274 F.3d 936

(5th Cir. 2001) (per curiam), on which Lott and Diggs rely to

assert that a “beyond reasonable doubt” standard applies, is

distinguishable because the crime alleged in Perrien contained a

jurisdictional requirement as an essential element, id. at 938-39

& n.1, while none of the crimes alleged in the instant indictment

has such an element. Because the Government presented at trial

direct and circumstantial evidence to prove, by a preponderance

of the evidence, that the crimes occurred in the Northern

District of Texas, judgment of acquittal is not appropriate.

Lott and Diggs next argue that the district court erred in

denying a new trial because the Government failed to disclose

2 material evidence in violation of Brady v. Maryland, 373 U.S. 83

(1963). They suggest that the Government should have disclosed

FBI Agent Michael Elsey’s testimony regarding co-defendant Telasa

Clark’s false statements. While it is doubtful that the

Government actually failed to disclose Elsey’s testimony, even

assuming arguendo that the Government did fail to disclose it,

the substantial trial evidence strongly corroborating co-

defendant Clark’s statements as to Lott’s and Diggs’s guilt

indicates that Elsey’s testimony would not have been material to

either conviction. See United States v. Weintraub, 871 F.2d

1257, 1262 (5th Cir. 1989). The alleged failure to disclose

Elsey’s testimony does not “put the whole case in such a

different light as to undermine confidence in the verdict.”

Kyles v. Whitley, 513 U.S. 419, 435 (1995). Because neither Lott

nor Diggs can satisfy Brady’s materiality requirement, a new

trial is not warranted.

Diggs further contends that the district court erred in

admitting testimony that, during the time period in which he was

committing the robberies, he was living with a woman that was not

his wife. Diggs questions the relevance of this evidence and

argues that, even if it is relevant, the prejudicial effect of

the evidence outweighs its probative value. Contrary to Diggs’s

contention, this evidence is quite relevant, as it helps explain

his motive to commit the bank robberies. While Diggs speculates

that the jury thought he was generally a bad person after the

3 Government introduced the evidence, the admission of such

evidence alone does not demonstrate either unfair prejudice or

that such prejudice substantially outweighs the evidence’s

probative value. See Fed. R. Evid. 403 & Comm. Notes.

Therefore, the court did not err in admitting this testimony.

Diggs also argues that the district court clearly erred in

applying a two-level increase to his offense level for his role

as an “organizer, leader, manager, or supervisor” under United

States Sentencing Guideline (“U.S.S.G.”) § 3B1.1(c). The trial

record indicates that Diggs (1) planned the Top Cats robbery; (2)

described the set-up to Lott in an effort to recruit him in the

criminal endeavor; (3) provided a car to be used in the get-away;

and (4) received, along with Lott, a substantial share of the

stolen funds. In light of the entire record, the district court

did not clearly err in enhancing Diggs’s sentence by two levels

for his leadership role in the crime under U.S.S.G. § 3B1.1(c).

See United States v. Musquiz, 45 F.3d 927, 932-33 (5th Cir.

1995).

Finally, Lott argues that the district court’s denial of his

motion for continuance constituted an abuse of discretion.

Although Lott’s counsel claims that he had insufficient time to

prepare, it is not denied that he had forty days to prepare for

eleven felonies. This allotment of time seems reasonable given

that Lott’s counsel had been able to interview all of his

witnesses but two, and as the trial court noted, there was no

4 reason why he could not have interviewed the two remaining

witnesses in the time left before trial. Further, Lott fails to

demonstrate how these two additional defendants would have

produced any benefit to his defense. Due to Lott’s inability to

establish the requisite degree of prejudice, the district court

did not err in denying the continuance.

Because neither Lott nor Diggs can establish reversible

error, their judgments of conviction and sentences are AFFIRMED.