United States v. Lott ( 2003 )

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that this opinion should not be published and is not precedent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
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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
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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
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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.
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