Appeal from the United States District Court for the Southern District of Illinois. No. 4:06-CR-40063-J. Phil Gilbert, Judge.
The opinion of the court was delivered by: Williams, Circuit Judge.
Before EASTERBROOK, Chief Judge, WILLIAMS, Circuit Judge, and PALLMEYER, District Judge.*fn1
Anthony E. Moore was convicted of conspiring to distribute drugs and of being a felon in possession of a firearm. He now appeals his conviction, asserting that the district court made four reversible errors during his trial.
Moore first argues that the court should have ordered a mistrial based on a question by the prosecutor regarding a gang. However, the prosecutor's question did not implicate Moore as a gang member and did not deprive him of a fair trial. Moore's next argument is that the court erred procedurally and substantively in admitting evidence of Moore's drug transactions that occurred before the start of the charged conspiracy. We find that although the court should have explained its reasons for admission, the prior drug transaction evidence was admissible to prove an element of the charged crime and went towards Moore's intent and knowledge.
Next, Moore argues that the court should not have admitted evidence that alluded to an involvement in dog fighting. This evidence, however, also contained an admission by Moore and its probative value outweighed any danger of unfair prejudice. Moore also asserts that the court should have ordered a mistrial after a juror encountered an associate of Moore's during a lunch break and discussed the experience with her fellow jurors afterward. But the court's voir dire of the jury following the juror's incident was proper, the jury was not compromised, and the juror did not discuss the trial inappropriately. Finally, Moore argues that even if no single trial error merits reversal, the cumulative effect of the errors requires reversal. However, the cumulative error doctrine does not apply because we do not find that Moore identified more than one error. Therefore, we affirm his conviction.*fn2
On May 8, 2008, after a four-day trial, a jury convicted Anthony Moore of conspiring to distribute 50 grams or more of cocaine base from October 2002 to March 7, 2007, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The jury found him not guilty of violating 18 U.S.C. § 924(c)(1)(A) and (B), possession of a short-barreled shotgun in furtherance of a drug-trafficking crime. Moore was sentenced to life imprison-ment on the conspiracy charge and 120 months on the firearm charge, to run concurrently. Additional facts will be presented below where relevant.
A. Mistrial Motion Based on Prosecutor's Question Properly Denied
Moore argues that the prosecutor engaged in prosecutorial misconduct by asking a question regarding a gang, and that the court erred by not ordering a mistrial as a result. This argument fails because the prosecutor's question did not constitute prosecutorial misconduct.
We review a district court's decision on motions requesting a mistrial for an abuse of discretion. United States v. Lane, 591 F.3d 921, 927 (7th Cir. 2010).In evaluating claims of prosecutorial misconduct, we employ a two-step process. We first look at the comment in isolation to determine if it was improper. United States v. Hale, 448 F.3d 971, 986(7th Cir. 2006). If we find that it was improper, we must then examine the comment in light of the record as a whole to determine whether the comment deprived the defendant of a fair trial. Id. The ultimate question is whether the comment "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id.
Here, the government had witnesses who could testify that Moore bragged about being a high-ranking member of the Gangster Disciples street gang ("GDs"), and that he used his status to recruit them into buying drugs from and selling drugs with him. Moore's trial was held before a court that had a general policy of disallowing gang affiliation testimony. This policy acknowledges "the substantial risk of unfair prejudice attached to gang affiliation evidence", and our court's directive of "careful consideration by district courts in determining the admissibility of gang membership and gang activity evidence." United States v. Irvin, 87 F.3d 860, 864 (7th Cir. 1996). The prosecutor had significant experience appearing before the trial court, and was well aware of its general policy of excluding evidence that could raise an inference of gang membership and activity.
During a pre-trial motion hearing, the prosecutor explained that he wanted to elicit testimony about Moore recruiting co-conspirators in his distribution of drugs, but that he would "limit it to the best of my ability". He stated that, "I will not say, 'Did the defendant say he was the governor of the Gangster Disciples?' I will stay away from all of that and not even ask." The court reiterated that Moore's gang affiliation was inadmissible, but that "depending upon what a witness says in response to a question either on direct or cross examination, the Court may instruct the jury regarding [the issue of gangs] if it comes in."
Devon Smith testified on the second day of trial. He was not one of the witnesses who could testify to being recruited by Moore. Instead, he was scheduled to testify about buying drugs from Moore, selling drugs with him, watching him sell drugs to other people, Moore's control over alleged crack houses, and Moore's possession of guns. During Smith's direct examination, the following exchange took place between the prosecutor and Smith:
Q [Prosecutor]. Now, a few days before you got picked up on this case, did you have a conversation with the defendant on 18th Street?
Q. And what was he talking about?
A. He talking about he tired of these BDs down there, and they were going to have to start paying dues.
Q. Okay. He was tired of GDs down here?
[Moore's Attorney]: Objection, Your Honor. May we approach?
THE COURT: No. The objection-
[Moore's Attorney]: We had had a ...