*The Honorable Roslynn R. Mauskopf, of the United States District Court for the Eastern District of New York, sitting by designation. 10-5168-cr(L) United States v. Lucas, Richardson
**UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT** 

**SUMMARY ORDER**

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C** **ITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT** **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT ,** **A PARTY MUST CITE EITHER THE F** **EDERAL A** **PPENDIX 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**  **.** At a stated term of the United States Court of Appeals 1 for the Second Circuit, held at the Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 15 thday of February, two thousand twelve. 4 5 PRESENT: RICHARD C. WESLEY, 6 SUSAN L. CARNEY, 7 Circuit Judges, 8 ROSLYNN R. MAUSKOPF, 9 District Judge

. * 10 11 12 13 UNITED STATES OF AMERICA, 14 15 Appellee , 16 17 -v.- 10-5168-cr(L), 18 11-356-cr(CON) 19 20 JON LUCAS, LAMAR RICHARDSON, 21 22 Defendants-Appellants. 23 24 25 26 27 28 292 FOR APPELLANT 1 Jon Lucas: ROBERT G. SMITH, Assistant Federal Public 2 Defender (Jay S. Ovsiovitch, Assistant 3 Federal Public Defender, on the brief ), 4 Western District of New York, Rochester, 5 NY. 6 7 FOR APPELLANT 8 Lamar Richardson: MAURICE J. VERRILLO, Law Office of 9 Maurice J. Verrillo, P.C., Rochester, NY. 10 11 12 FOR APPELLEE: JOSEPH J. KARASZEWSKI, Assistant United 13 States Attorney (Alexander J. Anzalone, 14 Student Law Clerk, on the brief ), for 15 William J. Hochul, Jr., United States 16 Attorney for the Western District of New 17 York, Buffalo, NY. 18 19 Appeal from the United States District Court for the 20 Western District of New York (Siragusa, J .). 21 22 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 23

**AND DECREED**that the judgments of the district court be 24

**AFFIRMED**

. 25 Defendants-Appellants Jon Lucas and Lamar Richardson 26 (“Defendants”) appeal from respective judgments of 27 conviction, following a jury trial in the United States 28 District Court for the Western District of New York 29 (Siragusa, J. ). Defendants were convicted of drug30 trafficking related offenses, and Richardson was convicted 31 of an additional firearm offense. We assume the parties’ 32 familiarity with the underlying facts and procedural history 33 of the case. 343 Defendants first challenge the district court’s denial 1 of their pretrial suppression motions on the basis that the 2 police lacked probable cause to believe that they were 3 engaged in a drug-trafficking crime. When examining a 4 ruling on a motion to suppress, “we review a district 5 court’s findings of historical fact for clear error, but 6 analyze de novothe ultimate determination of such legal 7 issues as probable cause.” United States v. Gagnon , 373 8 F.3d 230, 235 (2d Cir. 2004). “Probable cause exists if a 9 law enforcement official, on the basis of the totality of 10 the circumstances, has sufficient knowledge or reasonably 11 trustworthy information to justify a person of reasonable 12 caution in believing that an offense has been or is being 13 committed by the person to be arrested.” Id. at 236. 14 Information from an informant may be sufficiently reliable 15 to support a probable cause finding if the informant “has a 16 track record of providing reliable information, or if it is 17 corroborated in material respects by independent evidence.” 18 United States v. Wagner , 989 F.2d 69, 72-73 (2d Cir. 1993). 19 Having conducted an independent review of the record in 20 light of these principles, we conclude that the police had 21 probable cause as a matter of law to believe that Defendants 224 were engaged in drug-trafficking and possessed a firearm in 1 furtherance thereof for substantially the same reasons 2 stated by the district court in its Decision and Order. 3 Defendants also contend that the police officers’ 4 warrantless entry into the apartment was not justified by 5 exigent circumstances. We will not reverse a district 6 court’s determination as to whether exigent circumstances 7 existed unless it is clearly erroneous. United States v. 8 MacDonald , 916 F.2d 766, 769 (2d Cir. 1990) ( en banc ). The 9 exigent circumstances inquiry “is an objective one that 10 turns on . . . the totality of circumstances confronting law 11 enforcement agents in the particular case.” Id. “The core 12 question is whether the facts, as they appeared at the 13 moment of entry, would lead a reasonable, experienced 14 officer to believe that there was an urgent need to render 15 aid or take action.” United States v. Klump , 536 F.3d 113, 16 117-18 (2d Cir. 2008) (citations and internal quotation 17 marks omitted). 18 We agree with the district court that the objective 19 circumstances at the time of the officers’ entry would cause 20 a reasonable officer to believe that there was an urgent 21 need to take action inside the apartment. Indeed, when the 225 apartment door opened the second time, the shotgun that had 1 been aimed at Officer Klein moments earlier was no longer in 2 view. Moreover, despite Officer Klein’s order that 3 Defendants come out of the apartment, they remained inside. 4 We find no difficulty in concluding that an urgent need to 5 enter the apartment existed because the officers did not 6 know if there were other individuals in the apartment who 7 might be armed and pose a threat to their safety. See 8 United States v. Zabare , 871 F.2d 282, 289 (2d Cir. 1989). 9 Contrary to Lucas’s assertion, Officer Klein did not 10 create the exigency by not identifying himself as a police 11 officer when he conducted the “knock and talk.” Officer 12 Klein did not threaten to engage in conduct that violates 13 the Fourth Amendment because he made no threat to enter the 14 apartment when he conducted the “knock and talk.” See 15 Kentucky v. King , 131 S. Ct. 1849, 1858 & n.4 (2011). 16 Richardson’s argument that Officer Klein violated the “knock 17 and announce” rule is not only waived–he did not raise it 18 until his reply brief, see Norton v. Sam’s Club , 145 F.3d 19 114, 117 (2d Cir. 1998)—but also wholly without merit. We 20 have considered Defendants’ remaining arguments related to 21 this issue and find them, likewise, to be without merit. 221Richardson was charged with violating 18 U.S.C. § 924(c)(1)(A)(ii), which provides in relevant part: 6 Accordingly, the district court did not err in concluding 1 that exigent circumstances justified the officers’ 2 warrantless entry. Thus we find no error with the district 3 court’s ultimate decision to deny Defendants’ suppression 4 motions. 5 Richardson also contends that the district court erred 6 in failing to instruct the jury that it must acquit him of 7 the charge of possessing a firearm in furtherance of drug8 trafficking if the government failed to disprove beyond a 9 reasonable doubt that he possessed the firearm for self10 defense. We review the propriety of jury instructions de 11

novo . United States v. Naiman , 211 F.3d 40, 50 (2d Cir. 12 2000). “A jury instruction is erroneous if it misleads the 13 jury as to the correct legal standard or does not adequately 14 inform the jury on the law.” United States v. Walsh , 194 15 F.3d 37, 52 (2d Cir. 1999) (internal quotation marks 16 omitted). 17 The district court properly refused to give the 18 requested jury instruction because the instruction would 19 have misled the jury as to the correct legal standard under 20 18 U.S.C. § 924(c)(1)(A). 1We agree with several of our 21[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 sister circuits and conclude that self-defense is irrelevant 1 to a Section 924(c) violation. See, e.g. , United States v. 2 Sloley, 19 F.3d 149, 153 (4th Cir. 1994); United States v. 3 Johnson , 977 F.2d 1360, 1378 (10th Cir. 1992); United States 4 v. Poindexter , 942 F.2d 354, 360 (6th Cir. 1991). Indeed, 5 even if Richardson kept the shotgun for protection, he still 6 could be convicted under § 924(c)(1)(A) if he possessed it 7 in furtherance of drug-trafficking. See United States v. 8

Potter , 630 F.3d 1260, 1261 (9th Cir. 2011). Accordingly, 9 the district court properly rejected Richardson’s request 10 for a self-defense instruction. 11 Finally, Richardson contends that there was 12 insufficient evidence to support his conviction. We review 13 sufficiency challenges de novo. United States v. Andino , 14 627 F.3d 41, 49 (2d Cir. 2010)

. “It is well-established 15 that a defendant challenging the sufficiency of the evidence 16 bears a heavy burden.” United States v. Rojas , 617 F.3d 178 669, 674 (2d Cir. 2010) (internal quotation marks omitted). 1 We must view the evidence in the light most favorable to the 2 government and “uphold the jury’s verdict as long as any 3 rational trier of fact could have found the essential 4 elements of the crime beyond a reasonable doubt.” Id. 5 (internal quotation marks omitted). 6 Richardson cannot meet this heavy burden. There was 7 more than ample proof from which the jury could conclude 8 that he participated in a conspiracy to distribute cocaine 9 and to maintain a premises for the purpose thereof. “In 10 assessing the sufficiency of the evidence in the context of 11 a conspiracy conviction, deference to the jury’s findings is 12 especially important because a conspiracy by its very nature 13 is a secretive operation.” Rojas , 617 F.3d at 674 (internal 14 quotation marks and ellipses omitted). Jeffrey LaFond’s 15 testimony alone established that Richardson was present in 16 the apartment when Lucas sold crack to LaFond, and that 17 Richardson aimed a shotgun at LaFond during the transaction. 18 A rational trier of fact could have drawn the inference that 19 Richardson knew of the scheme to sell cocaine from the 20 apartment and knowingly joined in the scheme. That 21 testimony, likewise, was sufficient to support Richardson’s 229 conviction for maintaining a premises for the purpose of 1 distributing cocaine. 2 Finally, Richardson’s challenge to his firearm 3 conviction is meritless because he attacks the sufficiency 4 of the conviction solely on the basis that the government 5 failed to prove the underlying drug-trafficking convictions. 6 In any event, LaFond’s testimony that Richardson aimed a 7 shotgun at LaFond during a drug transaction was sufficient 8 to support the conviction. After a thorough review of the 9 evidence presented at trial, we conclude that Richardson’s 10 sufficiency challenge fails. 11 We have considered Defendants’ remaining arguments and 12 find them to be without merit. For the foregoing reasons, 13 the judgments of the district court are hereby **AFFIRMED**

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