United States of America v. John A. Lott

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1713
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
J OHN A. L OTT ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:03-CR-30206—David R. Herndon, Judge.
____________
A RGUED S EPTEMBER 16, 2005—D ECIDED M ARCH 27, 2006
____________
Before W OOD , E VANS , and S YKES , Circuit Judges.
W OOD , Circuit Judge. 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 dur-
ing voir dire in the presence of the entire venire. Lott
also appeals the district court’s decision to admit evi-
dence 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.

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2 No. 05-1713
I
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 Patrol-
man 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 affirma-
tively, explaining: “I have tested his credibility in the past.
He was with my union and I didn’t agree with everything
he said.”
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

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No. 05-1713 3
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 govern-
ment 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 ex-
ceptions, 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 particu-
lar, 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-girl-
friend’s testimony about his need to use the gun for protec-

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4 No. 05-1713
tion. The district court denied the motion and later allowed
the evidence to be admitted, explaining that the govern-
ment 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 de-
scribed 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 district court sentenced Lott to 120 months in
prison, three years’ supervised release, a $500 fine, and
a $100 special assessment.
II
Since Lott did not move to dismiss the venire at trial,
we review the district court’s decision only for plain error.
United States v. Robinson, 250 F.3d 527, 529 (7th Cir.
2001). We must thus determine: “(1) whether there was
error at all, (2) if so, whether it was plain, (3) whether the
error affected [Lott]’s substantial rights, and (4) whether it
seriously affected the fairness, integrity, or public reputa-
tion of the proceedings.” Id.

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No. 05-1713 5
“The decision whether to dismiss any or all jurors lies
in the sound discretion of the trial judge. On review, we are
charged with determining whether manifest injus-
tice resulted from the judge’s refusal to dismiss all of the
jurors which [sic] heard the improper comments. . . .”
United States v. Jones, 696 F.2d 479, 492 (7th Cir. 1982).
For “manifest injustice” to result, improper comments must
“prevent[ ] . . . other jurors from being fair and impartial.”
United States v. Hernandez, 84 F.3d 931, 936 (7th Cir.
1996). In conducting this analysis, we credit jurors’ own
affirmations of impartiality, “[a]bsent any reasons to
suspect as untrue the jurors’ claims of ability to remain
impartial despite exposure to an improper third party
comment.” United States v. Moutry, 46 F.3d 598, 603 (7th
Cir. 1995).
The district court’s decision not to dismiss the jury
panel did not amount to an abuse of discretion. It is impor-
tant in this context to recall that our focus at this stage
must be on the impartiality of the jury that actually sat, not
on Valleroy, who was struck. See United States v. Martinez-
Salazar, 528 U.S. 304, 313 (2000); Ross v. Oklahoma, 487
U.S. 81, 86 (1988). What the district court had to decide,
therefore, was whether Valleroy’s statements about Officer
Steele’s credibility irreparably tainted the remainder of the
jury and destroyed its ability to remain fair and impartial.
Although Valleroy vouched for Steele’s good character, he
also remarked that he did not agree with everything Steele
had ever said. More importantly, the district court ques-
tioned the remaining potential jurors about their ability to
remain impartial after Valleroy made his comments. The
venire members affirmed to the court their ability to remain
impartial, and Lott has presented no evidence that calls
into question the truth of their statements.
Even if one thought that the other jurors could not erase
Valleroy’s comments from their memories and that one
or more of them uncritically accepted Valleroy’s endorse-

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6 No. 05-1713
ment of Steele, Lott’s argument would still run aground
on the third and fourth parts of the plain error test. The
evidence against him, particularly the gun found under-
neath his car seat and on top of the bag of white powder,
was powerful. Moreover, Steele’s testimony, and thus the
matter of his credibility, were not central to the govern-
ment’s case. It was Dotson, not Steele, who was the gov-
ernment’s first and key witness, and who testified at length
to his search of the car, the discovery of the gun, and Lott’s
statements after his arrest. In contrast, Steele was the
government’s last witness; his brief testimony served
mainly to corroborate Dotson’s account—an account that
Lott did not significantly dispute. Thus, even if it was error
not to dismiss the venire, Lott’s substantial rights were not
affected and “it is clear beyond a reasonable doubt that a
rational jury would have found [him] guilty absent the
error.” Robinson, 250 F.3d at 530 (internal quotation marks
omitted).
Lott fares no better in his argument that the district court
abused its discretion in admitting evidence regarding his
possession of the bag of white powder and practice of selling
“dummy drugs.” The district court admitted this evidence as
“intricately related to the crime of [being] a felon in posses-
sion of a firearm,” since the sale of such drugs “made people
mad” and required Lott to carry a gun for protection. This
rationale is wholly congruent with our prior holdings that
“evidence of uncharged criminal activity is not considered
‘other crimes’ evidence under Fed. R. Evid. 404(b) if it arose
out of the same transaction or series of transactions as the
charged offense, if it is inextricably intertwined with the
evidence regarding the charged offense, or if it is necessary
to complete the story of the crime on trial.” United States v.
Roberts, 933 F.2d 517, 520 (7th Cir. 1991) (internal quota-
tion marks omitted). See also United States v. Akinrinade,
61 F.3d 1279, 1285-86 (7th Cir. 1995) (referring to this as
the “intricately related” doctrine). The district court there-
fore did not abuse its discretion.

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No. 05-1713 7
For these reasons, we A FFIRM the judgment of the district
court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-27-06

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