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United States v. Moore

July 1, 2008


Appeal from the United States District Court for the Southern District of Illinois. No. 07 CR 30027-William D. Stiehl, Judge.

The opinion of the court was delivered by: Ripple, Circuit Judge

ARGUED MAY 8, 2008

Before COFFEY, RIPPLE and SYKES, Circuit Judges.

A jury convicted Fred Moore of one count of possession with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 851, one count of using a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c), and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to 300 months' imprisonment, to be followed by 10 years' supervised release. On appeal, he challenges the admission into evidence of a statement that he allegedly made to a police officer in which he described his prior possession of crack for distribution. Because we conclude that the district court did not abuse its discretion by admitting this evidence, we affirm.


On January 29, 2007, police officer Lance Reynolds of Granite City, Illinois, noticed someone driving a stolen car in East St. Louis. Officer Reynolds signaled for the car to stop, but the driver sped off into a nearby alley. The officer followed. He saw the driver and the passenger, Fred Moore, exit the vehicle and flee, and he ran after them. The driver escaped, but Officer Reynolds caught up to Mr. Moore, shortly after observing him throw a bag onto the ground. Mr. Moore resisted arrest, but he finally was handcuffed and detained. Officers retrieved the bag that Mr. Moore had thrown, as well as a .40 caliber Glock 27 handgun found within five feet of the bag. The bag contained 89.2 grams of powder cocaine, 279.1 grams of crack cocaine and $4,045 in cash.

Before trial, the Government gave notice of its intent to introduce evidence under Federal Rule of Evidence 404(b) of Mr. Moore's prior involvement in a drug offense. The Government proposed introducing evidence that, two weeks before the date of the charged offense, Mr. Moore had signed a written statement in which he admitted that he had thrown another bag of crack cocaine from his car while attempting to evade police. The Government submitted that this evidence would establish Mr. Moore's knowledge, intent, motive and absence of mistake with respect to the charged crimes.

Mr. Moore objected to the Government's proposed use of this evidence. He argued that the evidence in question was unreliable and unduly prejudicial. In his view, it was being used improperly to prove his propensity to commit the crimes charged. He also contended that the statement that he allegedly had made to police was not recorded and would confuse the jury.

The district court overruled Mr. Moore's objection. First, the court determined that the evidence was not of the type that was likely to inflame a jury's emotions. Therefore, the court reasoned, an exclusion under Rule 403 for undue prejudice was unwarranted. The court next held that the evidence was admissible to show Mr. Moore's intent, knowledge, lack of mistake or motive with respect to the charged crimes. The court noted that a jury instruction would eliminate any confusion and prevent a "mini-trial" on the earlier arrest. Finally, the court explained that cross-examination of the officer who took Mr. Moore's statement would resolve any question about the state-ment's reliability.

The uncharged misconduct was admitted at trial through the testimony of Ontourio Eiland, a detective sergeant with the East St. Louis Police Department's Narcotics Unit. Detective Eiland testified that he had witnessed Mr. Moore's statement to the police on January 16, 2007. The Government's lawyer presented Detective Eiland with a copy of the written statement, and he confirmed that it was the same statement that he had witnessed and that it fairly represented Mr. Moore's words. The Detective then read the statement into evidence. According to the statement, Mr. Moore was driving a car when the police attempted to pull him over. Mr. Moore did not pull to the side; he drove quickly to get away from the police, without stopping at stop signs. In the statement, Mr. Moore also admitted that he had possessed ten rocks of crack cocaine, which he had thrown out of the car's window as the police approached. Mr. Moore stated that he had purchased the drugs the night before for $130 and intended to sell them to someone for double what he had paid for them. During cross-examination, Detective Eiland admitted that he had not been present during the police chase and that he only knew of the events recounted in the statement second-hand. He also stated that, as far as he knew, Mr. Moore possessed only about five grams of crack. The Detective agreed that recording equipment was available in the police station but had not been used during Mr. Moore's alleged statement. Finally, he testified that no charges ever were brought against Mr. Moore in connection with this event.

The Government then called five other witnesses. Officer Reynolds testified about the chase and arrest of Mr. Moore on the night of the charged offense. Wade Gummersheimer, a DEA task force agent, testified that he had interviewed Mr. Moore after his arrest for the charged conduct. He testified that, during this interview, Mr. Moore had admitted that he had thrown down the bag after Reynolds caught up to him but that Mr. Moore had refused to discuss the drugs and the gun. Government witnesses also testified as to the location of the bag of drugs and the firearm, inconclusive fingerprint traces on the gun, the gun's transfer in interstate commerce and Mr. Moore's stipulation that he previously had been convicted of a crime punishable by more than a year's imprisonment.

Mr. Moore called three witnesses to testify: an East St. Louis police officer, a police forensic scientist and an investigator in the Federal Public Defender's Office. Through these witnesses, Mr. Moore attempted to cast doubt on his possession of the handgun by showing that a man, who had witnessed a previous shooting involving the same gun, lived near the scene of Mr. Moore's arrest and might have put the gun where it was found. However, this testimony was inconclusive: The forensic scientist could not determine whether Mr. Moore had ever fired the gun, and the investigator acknowledged that he had not spoken with the other man or attempted to learn any additional information about him. The jury returned a verdict of guilty on all counts.


A. Admission of the ...

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