United States v. Moore

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Moore No. 02-6342 ELECTRONIC CITATION: 2004 FED App. 0231P (6th Cir.) File Name: 04a0231p.06 STATES ATTORNEY, Louisville, Kentucky, for Appellee. ON BRIEF: Larry D. Simon, SIMON & SIMON, Louisville, Kentucky, for Appellant. Larry E. Fentress, Terry UNITED STATES COURT OF APPEALS M. Cushing, UNITED STATES ATTORNEYS, Louisville, Kentucky, for Appellee. FOR THE SIXTH CIRCUIT _________________ _________________

UNITED STATES OF AMERICA , X OPINION Plaintiff-Appellee, - _________________ - - No. 02-6342 FRIEDMAN, Circuit Judge. The appellant Derrick D. v. - Moore challenges his convictions for armed bank robbery, > homicide and assault during the robbery, possessing a firearm , as a convicted felon, and possessing cocaine base. He raises DERRICK D. MOORE , - Defendant-Appellant. - various issues: that the district court should have bifurcated at trial the felon-in-possession charge into its component N elements of possession and felony conviction; that improper Appeal from the United States District Court references were made during the trial to his prior conviction; for the Western District of Kentucky at Louisville. that the prosecutor had asked a witness improper questions; No. 01-00035—Thomas B. Russell, District Judge. that the prosecutor improperly disclosed to a witness that the latter had identified the wrong person at a lineup; and that the Argued: March 12, 2004 court improperly directed a supplemental interrogatory to the jury, to determine the amount of drugs Moore possessed, after Decided and Filed: July 20, 2004 it had announced its guilty verdict. We decide all of these issues against Moore and affirm his convictions. Before: NELSON, MOORE, and FRIEDMAN, Circuit Judges.* I

_________________ The evidence, the sufficiency of which Moore does not contest, shows the following facts: Co-defendant Tiffany COUNSEL Pennington committed an armed bank robbery in Louisville, Kentucky, during which he shot and killed a bank employee. ARGUED: Larry D. Simon, SIMON & SIMON, Louisville, Pennington fled in an automobile that was abandoned in a Kentucky, for Appellant. Larry E. Fentress, UNITED nearby mall. A cellular phone found in the car was traced to Pennington. Later that afternoon, Moore contacted Richard Jewell, and the two of them retrieved the handgun used in the * robbery from a ditch. Jewell kept the gun until it was turned Daniel M. Friedman, Circuit Judge of the United States Court of over to law enforcement officers a few days later. Ballistic Appeals for the Federal Circuit, sitting by designation.

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tests showed that this was the gun that Pennington used II during the robbery to kill the bank employee. A. Prior to trial, Moore moved to bifurcate the felon-in- Police went to the house of Moore’s girlfriend and possession charge because of the alleged prejudicial effect the interviewed Moore, who stated there were no drugs in the introduction of evidence relating to his prior conviction could house. After the girlfriend consented to a search of the home, and would have on the jury. He proposed that the jury should the officers found 188 grams of a substance containing crack determine only whether he possessed a handgun, and that cocaine. only if the jury found that he had would his felony conviction be introduced. The district court ultimately denied that Moore’s connection with the bank robbery, murder and motion, reasoning that since his criminal history was relevant assault was two-fold. First, a few days before the robbery, to the other charges, his prior conviction would inevitably be Moore asked Jewell to purchase a handgun for him. He did disclosed to the jury; therefore, reference to it in connection so because, as a convicted felon, he could not legally himself with the gun possession charge would not prejudice Moore. purchase a firearm. Shortly thereafter, Moore drove Jewell to Moore then stipulated to his prior conviction. a pawnshop to purchase the gun; a few days later Moore and Jewell returned to the pawnshop and received the gun and The determination whether to bifurcate a particular count ammunition. lies within the discretion of the district court, and we review a refusal to bifurcate for abuse of discretion. Several other Second, Moore was the driver of the getaway car, which circuits have held that a district court’s decision against Moore and Pennington had stolen earlier the same day. Two bifurcating a felon-in-possession count is reviewed for abuse eyewitnesses identified Moore as the driver. Telephone of discretion. See, e.g., United States v. Belk, 346 F.3d 305, records showed that Moore called Pennington several times 310 (2d Cir. 2003) (“[A] district court’s exercise of its on the morning of the robbery. discretion in refusing to bifurcate the elements of a [felon-in- possession] charge is not reversible error.”), cert. denied, 124 The district court severed the drug possession charge from S. Ct. 1474 (2004); United States v. Mangum, 100 F.3d 164, the other charges, and each group of charges was tried 171 (D.C. Cir. 1996) (“[W]e find that the district court did not separately to a different jury before the same judge. The . . . abuse its discretion by deciding not to bifurcate the district court refused to bifurcate the felon-in-possession ex-felon element and the other elements of [the charge into its component elements of gun possession and felon-in-possession count].”). In an unpublished decision, felony conviction, and both elements were tried and United States v. Underwood, Nos. 95-5441/95-5442, 1996 submitted to the jury together. U.S. App. LEXIS 24995 (6th Cir. Sept. 20, 1996), this court, in upholding a district court’s refusal to bifurcate the Pennington, who pleaded guilty, testified at Moore’s bank possession and felony elements of felon-in-possession counts, robbery trial, admitting that he had robbed the bank and killed “adopted [the] rule” of the Ninth Circuit in United States v. the bank employee. He stated that he and Moore had planned Barker, 1 F.3d 957 (9th Cir. 1993), amended by 20 F.3d 365 the robbery together and shared the proceeds and that Moore (1994). There, in reversing a district court’s bifurcation of the had driven the getaway car. two elements of a felon-in-possession count, the Ninth Circuit “h[e]ld that the district court may not bifurcate the single No. 02-6342 United States v. Moore 5 6 United States v. Moore No. 02-6342

offense of being a felon in possession of a firearm into ha[d] been convicted of a felony.” The prosecutor is also multiple proceedings.” Id. at 959. alleged to have made similar references in his closing and rebuttal statements. Although Barker appears to announce the rule that a felon- in-possession count “may not” be bifurcated at all, other We doubt that the references were improper. Because the decisions of the Ninth Circuit limit that principle to cases stipulation made it unnecessary for the prosecution to prove involving only a single felon-in-possession charge. See an essential element of the crime, the prosecutor properly United States v. Nguyen, 88 F.3d 812, 817-18 (9th Cir. 1996). disclosed this fact to the jury. Moreover, the prosecutor’s We need not reach that issue to decide this case, however, reference to Moore’s prior felony conviction was no broader since we conclude that here the district court did not abuse its than necessary to accomplish its purpose. Indeed, after discretion in refusing to bifurcate. As the district court disclosing the stipulation to the jury in his opening remarks, pointed out, the jury was going to learn about Moore’s felony the prosecutor told the jury that the “details” of the conviction conviction apart from the felon-in-possession charge. were “not material . . . to this particular case.” Finally, in its Investigators originally linked Moore to the bank robbery instructions to the jury, the district court admonished that they through Jewell. Jewell had purchased the handgun used in the could “only consider th[e] stipulation for the very limited bank robbery for Moore because Moore was precluded from purpose of determining whether [Moore] had been convicted doing so as a convicted felon. In developing these facts, the of a felony offense” and were not to “consider it for any other prosecution necessarily and inevitably would refer to Moore’s purpose.” felony conviction. Considering “the totality of circumstances,” Kincade v. Because that conviction was independently relevant to the Sparkman, 175 F.3d 444, 446 (6th Cir. 1999), these proof of the bank robbery charges, the district court did not comments by the prosecutor were not improper, the court abuse its discretion in refusing to bifurcate the felon-in- gave a curative instruction, and they did not deny Moore a possession count. See Fed. R. Evid. 404(b) (“Evidence of fair trial. other crimes . . . may . . . be admissible . . . as proof of . . . intent, preparation, [or] plan . . . .”); cf. United States v. Clark, 2. Detective Duncan, a lead witness for the prosecution, 184 F.3d 858, 868, 866 (D.C. Cir. 1999) (holding that a testified that Moore told him during the investigation that he district court did not abuse its discretion in refusing to sever met Pennington while the two were in prison together. He a felon-in-possession charge from other charges where “proof also testified that “[Moore] informed me that due to previous of each crime would have been admissible in the separate felony convictions[,] he was not allowed by law to purchase trials”). a handgun[, and] that he had offered Richard Jewell money if Mr. Jewell agreed to purchase the handgun.” As discussed B. Moore contends that various references at the trials to previously, this testimony was relevant to the bank robbery his prior felony conviction denied him fair trials and that the charges because the police initially linked Moore to the district court should have declared mistrials when those robbery through Jewell. Immediately after those statements, references were made. the district court admonished the jury that “[a]ny statements by Mr. Moore or the interviewing officer [Detective Duncan] 1. In his opening statement, the prosecutor told the jury . . . of uncharged criminal activities . . . were introduced only that they would “hear [about] a stipulation . . . that [Moore] for the fact that those statements were made at that time” and No. 02-6342 United States v. Moore 7 8 United States v. Moore No. 02-6342

were not to be considered “as any evidence that Mr. Moore is prior criminal activity were detailed, and whether the guilty of [the] crimes charged . . . for which he is on trial.” “statements were . . . of major import” when “compared with the other evidence” against the defendant.). The prior relationship between Moore and Pennington was relevant in proving that the two had a common plan to rob the 3. At the separate trial of the drug possession charge, bank. The explanation that Moore had Jewell purchase the prosecution witness deputy sheriff Kenneth Menzie, who was gun because he was a convicted felon explained to the jury present during the search of Moore’s girlfriend’s house in why Moore did not purchase the gun himself. which the drugs were discovered, testified that when asked whether “there were any weapons in the house,” Moore The situation in the present case is similar to that in United “replied, [‘]there’s no weapons in the house. I’m a convicted States v. Harris, where this court refused to reverse a felon, I can’t have a gun.[’]” The district court immediately conviction because a prosecution witness made a passing told the jury: “this testimony you just heard about the reference to the defendant’s prior arrest. 165 F.3d 1062 (6th convicted felon, completely disregard that. That had no Cir. 1999). The witness, a law enforcement officer, testified business being said at all. It’s irrelevant. It’s completely that he had located the defendant by finding his address on a irrelevant to everything. Completely disregard it.” The previous arrest record. Id. at 1065. This court’s statements district then denied Moore’s motion for a mistrial based on in rejecting the challenge to the conviction are equally that statement. As it explained: applicable to the present case: In regard to the statement of Officer Menzie that the it d[id] not appear that the government intentionally defendant had a prior felony conviction, I was just elicited the reference to [the defendant’s] prior arrest; the attempting to answer the Government’s question. I don’t government’s line of questioning was reasonable; the believe the Government intended for him to give the district court gave an immediate and clear limiting answer and he didn’t know what he was going to say. instruction; the isolated allusion to the prior arrest was Anyway, there’s no bad faith or intentional conduct on not part of a pattern indicative of bad faith; and the behalf of the Government. I think it was inadvertence. officer’s stray remark constituted only a minuscule part Everyboy wished it hadn’t happened. I think it’s such a of the evidence against [the defendant]. minor part of the trial. I think my admonition will take care of it. Id. at 1066; see also United States v. Stotts, 176 F.3d 880, 886-87 (6th Cir. 1999) (holding that a district court properly Although the reference to Moore’s felony conviction was denied the defendant’s request for a mistrial following a improper in the trial of the drug possession charge, the district witness’s statement that the defendant had a “‘an extensive court correctly denied a mistrial. The single comment, which criminal record’” because “the remark was isolated and the the court immediately admonished the jury to “completely district court gave an immediate curative instruction”); United disregard,” did not taint the case so as to deny Moore a fair States v. Terry, 729 F.2d 1063, 1070 (6th Cir. 1984) (In trial. Moreover, as in Terry, the statement was not “of major determining whether improper witness statements “affected import” when “compared with the other evidence” against the the substantial rights of the defendant” to warrant a new trial, defendant. Moore had previously admitted that the drugs the factors to be considered are whether a “curative found in his girlfriend’s house belonged to him. instruction” was sought or given, whether the references to No. 02-6342 United States v. Moore 9 10 United States v. Moore No. 02-6342

C. Moore also challenges the district court’s denial of a ‘crack’ cocaine,” in violation of 21 U.S.C. § 841(a)(1) (2000). mistrial following the prosecutor’s questioning of another The court instructed the jury that if it found Moore guilty of investigator at the bank robbery trial, Steven Wight. First, the possession with intent to distribute cocaine base, it “must also prosecutor asked Wight whether, during his investigation, he determine the amount of cocaine base involved in this crime,” had been able to eliminate as a suspect another identified which would be either “(1) 50 grams or more of a substance person, who Moore contended was the getaway car driver. containing a detectable amount of cocaine base,” or “(2) Less After sustaining Moore’s objection to the question, the court than 50 grams” of such substance. Compare 21 U.S.C. § told the jury to “ignore the question . . . like it wasn’t even 841(b)(1)(A)(iii) with 21 U.S.C. § 841(b)(1)(B)(iii). asked.” Shortly thereafter, the prosecutor asked Wight whether certain physical evidence taken from the getaway car The court also instructed the jury on the lesser included was subjected to forensic analysis. Again, the court sustained offense of simple possession of cocaine base. It told the jury Moore’s objection and instructed the jury to disregard the that if it found Moore not guilty of possession with intent to question. Moore contends that the nature of the two questions distribute, it “must go on to consider whether the Government and the proximity in which they were asked may have left the has proven the lesser charge of possession of cocaine base.” jury with the impression that forensic testing exculpated the The court did not instruct the jury that it had to determine the person Moore alleged was the driver of the getaway car. amount of cocaine base if it found Moore guilty of simple possession – presumably because, during the court’s reading Here, as in the case of Moore’s objections to other of its proposed instructions to counsel, both of them said they questions or statements discussed above, the district court “d[id]n’t think” that if the jury “convict[ed] him of possession properly denied a mistrial. The asking of these two unrelated . . . they need[ed] to find [the] amount.” questions, which the district court immediately told the jury to ignore, did not deny Moore a fair trial. The jury found Moore guilty of only simple possession. The prosecutor immediately stated that it would be necessary D. In his reply brief, Moore argues for the first time that that the amount of cocaine base Moore possessed be there was prosecutorial misconduct when, shortly before trial, determined because, under the governing statute, the penalty the prosecution told one of the eyewitnesses to the crime who for possession of cocaine base was greater if more than five testified at the trial that he had identified the wrong person grams were involved. 21 U.S.C. § 844(a). Moore contended during a pretrial photographic lineup. Moore offers no that the government had waived this point by previously explanation or justification for his failure to raise this point in agreeing that if the jury found only simple possession, the his forty-page opening brief. We here follow this court’s amount need not be determined. normal practice of “declin[ing] to consider issues not raised in the appellant’s opening brief.” Priddy v. Edelman, 883 The district court, although concluding that the government F.2d 438, 446 (6th Cir. 1989). probably had waived the issue, determined that any waiver was “correctable because the jury ha[d] not been dismissed,” III “and in looking at the greater picture of justice and the interpretation of the statute, . . . there’s no prejudice to the The drug possession charge in the indictment alleged that defendant by going forward at this time and determining the Moore “knowingly and intentionally possessed with intent to amount for simple possession.” The court gave the jury a distribute 50 grams or more of cocaine base, also known as supplemental instruction to determine whether the amount No. 02-6342 United States v. Moore 11

Moore possessed was five grams or more or less than five grams. The jury again retired, and five minutes later returned, finding that the government had proved beyond a reasonable doubt possession of five grams or more of cocaine base. The district court properly gave the jury the supplemental instruction to determine the amount of crack cocaine Moore had possessed. The procedure followed in this case to determine that amount did not prejudice Moore. If the original instructions had required the jury to make that finding, the jury would have included in its original verdict the supplemental finding it subsequently made: that Moore possessed more than five grams of crack cocaine. The statute provides a mandatory sentence of at least five years imprisonment for simple possession of more than five grams of crack cocaine. Id. The prosecutor thus correctly pointed out that “[a] determination will have to be made at some time of the amount for sentencing purposes” and “[w]e can certainly put on proof as to the amount at sentencing.” As Moore recognizes, “[t]he standard of review for a supplemental charge to a jury under these circumstances is abuse of discretion.” Appellant’s Br. at 39. A district court has broad discretion to supervise, control, and determine the issues the jury is to decide and the manner in which it is to do so. See United States v. Hiland, 909 F.2d 1114, 1136-37 (8th Cir. 1990) (stating that a federal district court that gave “supplemental charge[s]” to correct a “verdict [that] was ambiguous due to the wording of the instructions” had “authority to require redeliberation in cases in which there [was] uncertainty, contingency, or ambiguity regarding the jury’s verdict”). Considering all the circumstances, the district court did not abuse its discretion here in concluding that the government was “entitled to have the amount determined beyond a reasonable doubt by a jury.” CONCLUSION The judgment of the district court is affirmed.