United States v. Tim Moore

911 F.2d 140, 1990 WL 115339
CourtCourt of Appeals for the Eighth Circuit
DecidedOctober 5, 1990
Docket89-2396
StatusPublished
Cited by16 cases

This text of 911 F.2d 140 (United States v. Tim Moore) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Tim Moore, 911 F.2d 140, 1990 WL 115339 (8th Cir. 1990).

Opinions

JOHN R. GIBSON, Circuit Judge.

Tim Moore appeals from his conviction for possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) (1988). Parnell Riley, Moore’s friend and [141]*141business associate, had asked Moore to pick up a bag at the Little Rock airport after it arrived on a flight from Los Angeles. Law enforcement authorities had been alerted to the possibility that the bag contained narcotics and when Moore retrieved the bag from the airport, the bag was seized. The bag was later found to contain 249.5 grams of cocaine. On appeal, Moore argues that: (1) the testimony of a government witness that she had observed drugs in the home she shared with Moore was so prejudicial that the district court1 should have declared a mistrial; and (2) the evidence was insufficient to support the verdict with respect to Moore’s intent to distribute. We affirm the judgment of the district court.

At trial, a Los Angeles police detective testified that, on May 11, 1988, at approximately 11:30 p.m., she and her partner observed a man, later identified as Parnell Riley, at a ticket counter at the Los Ange-les airport. She testified that Los Angeles is well-known as a source city for narcotics. She said that Riley checked a suitcase which was locked with a large padlock, carried a briefcase, and nervously looked around him. The officer determined from the ticket agent that Riley was traveling to Little Rock with a prepaid ticket. The officer and her partner then approached Riley and identified themselves. When the officers asked Riley to present some identification, he complied. Riley denied that he was carrying narcotics and offered to allow the officers to search his briefcase. They did so but found nothing of significance. The officers then asked if they could search the luggage which Riley had checked onto the flight. Riley acted very nervous and asked if he was being detained. The officers informed him that he was not under arrest and he then left the area. The Los Ange-les police then contacted the Little Rock Police Department to inform them of the possibility that narcotics were being transported on Riley’s flight.

A Special Agent of the Drug Enforcement Administration (DEA) testified that he observed Riley arrive at the Little Rock airport early the next morning. In the baggage claim area, a canine sniff test alerted the authorities to the existence of narcotics in Riley’s bag. The officers then observed the bag, identified by its baggage claim number, as it was placed on the conveyor belt. Riley apparently left the airport without claiming the bag.

The DEA Special Agent testified that all baggage except Riley’s was eventually claimed. He observed an individual, later identified as Tim Moore, sitting some distance away from the baggage conveyor belt. When Riley’s bag was the only one remaining on the conveyor belt, Moore stepped forward and retrieved it. He did not check the numbers or name tags on the bag but nervously looked around the area. The Special Agents then approached Moore, identified themselves, and asked him if he owned the suitcase. Moore dropped the suitcase and answered that he did not own the suitcase nor did he know who did. He told the agents that he had received an anonymous, early morning phone call telling him to pick up the suitcase. He stated that the call was received by his answering machine and that he no longer had the tape recording. When asked about his relationship with Parnell Riley, he stated that he knew Riley only vaguely. The agent testified that he observed a woman, later identified as Darlene Scott, Moore’s girlfriend, waiting in Moore’s car. Moore was interviewed by authorities later that day and again denied knowing the identity of the person who had called him about the suitcase.

Darlene Scott testified for the government. She said that she and Moore had cohabitated from January to July 1988, but were no longer living together at the time of trial. She stated that Moore and Riley were friends and that they had held private meetings at her residence. Scott testified that Moore had traveled to Los Angeles in late April or early May 1988. She described the events of May 12, 1988, when she accompanied Moore to the airport. [142]*142Moore had received a phone call from Riley that morning asking him to pick up the suitcase. He then dressed and went to the airport. She waited in the car while Moore went into the airport. When Moore returned to the car, she said that he told her that Riley had set him up. She stated that Moore also said that he had seen Riley at the airport but that they had not spoken. According to her, Moore acted nervously and commented that the car or house might be bugged. When Scott and Moore arrived home, she said that Moore went into his office and sprinkled chili powder on the floor to conceal odors in case police brought in a dog for smell tests. She testified that Moore then destroyed the tape recording from the answering machine.

Telephone records were introduced into evidence which showed phone calls made from Los Angeles to Riley’s pager which were charged to the phone number at the house shared by Moore and Scott. A chemist for the DEA testified that the powder found in the suitcase was 97 percent pure cocaine. The amount of cocaine was determined to be 249.5 grams and had a street value of approximately $58,000.

Moore took the stand to testify on his own behalf. He attempted to challenge Scott’s testimony and her credibility. He testified that Riley asked him to pick up the bag at the airport, but admitted that he told the police officers that he did not know whose bag it was nor who had called him.

Moore was tried before a jury and convicted of one count of possession with intent to distribute cocaine. He was sentenced to forty-one months imprisonment. Moore now appeals his conviction.

I.

Moore first argues that Darlene Scott's testimony referring to the presence of drugs in their home was unfairly prejudicial and that the cautionary instruction did not cure its prejudicial impact. Moore urges that the district court should have granted his motion for a mistrial.

Before trial, the court granted Moore’s motion in limine preventing the admission of evidence unrelated to the events of May 11 and 12, 1988. This ruling was based upon the fact that Moore was not charged with a conspiracy count but only charged with possession with intent to distribute. Darlene Scott was cross-examined by Moore’s counsel and the following exchange took place:

Q: Up to that point and up to a point a few days later, the next day when you cleaned up you never saw any drugs or anything like that?
A: I didn’t see any drugs in my house but once, and Tim was present.
Q: Let me ask you this question. We’re talking about up to May 12?
A: Up to — no, no, I never saw any drugs. Is that the question?
Q: Up to the time you were cleaning up you never saw any?
A: No.

(Tr. 94). Scott’s testimony as to the presence of drugs in the house after May 12 thus violated the in limine ruling.

Following Scott’s testimony, Moore’s attorney requested a bench conference and the following remarks were made:

Mr. Dunklin: Your Honor, I am very concerned with the statement that Ms.

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United States v. Tim Moore
911 F.2d 140 (Eighth Circuit, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
911 F.2d 140, 1990 WL 115339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tim-moore-ca8-1990.