                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 15a0793n.06

                                                  No. 14-5205

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                                     )
                                                                                                FILED
                                                                                         Dec 04, 2015
                                                              )
                                                                                     DEBORAH S. HUNT, Clerk
        Plaintiff-Appellee,                                   )
                                                              )
                                                                    ON APPEAL FROM THE
v.                                                            )
                                                                    UNITED STATES DISTRICT
                                                              )
                                                                    COURT FOR THE MIDDLE
CHRISTOPHER MOODY,                                            )
                                                                    DISTRICT OF TENNESSEE
                                                              )
        Defendant-Appellant.                                  )
                                                              )

        Before: SUTTON and KETHLEDGE, Circuit Judges; BECKWITH, District Judge.*

        KETHLEDGE, Circuit Judge. A jury convicted Christopher Moody of manufacturing,

possessing, and distributing controlled substances in violation of 21 U.S.C. § 841(a), and several

related charges including possessing a firearm in furtherance of the drug scheme. Moody

challenges the evidentiary rulings and jury instructions related to video and audio evidence used

against him at trial. We affirm.

                                                         I.

        In November 2013, a federal grand jury in Nashville, Tennessee indicted Christopher

Moody on eight counts related to manufacturing, possessing, and distributing controlled

substances “[b]etween in or around January 2008 through in or around December 2008[.]”

R. 2468 at 3, 4. The charges included possessing a firearm in furtherance of drug trafficking.

        At trial, the government sought to introduce a video of Moody speaking, cooking crack,

and waving a handgun. Moody objected to the entire video. The district court excluded various

*
 The Honorable Sandra S. Beckwith, Senior United States District Judge for the Southern District of Ohio, sitting
by designation.
No. 14-5205
United States v. Moody

excerpts that it deemed too prejudicial, including one in which Moody threatens to massacre his

enemies in a fashion similar to the shootings at Columbine High School and Virginia Tech. But

the district court admitted other excerpts. Three excerpts in particular drew repeated objections

from Moody, who argued that they predated the relevant limitations period and were thus

unfairly prejudicial evidence of “other acts” under Federal Rules of Evidence 403 and 404(b).

The first excerpt shows Moody stirring a concoction on a kitchen stove while describing his

process:

               [Y]ou see me in the kitchen right now, bitch, in this Pyrex cooking
               up this purloin yellow. Watch me get this shit hard. Watch me get
               this shit hard, bitch. I got it soft—my homeboy brought it to me
               soft. Now I’m gonna make it hard.

Exhibit 46b7, at 5:43-5:59. Multiple witnesses testified at trial that the excerpt was filmed in the

house that the indictment charged Moody with using to manufacture and distribute drugs. The

district court thus admitted the excerpt as probative of the manufacturing charge.

       In the next excerpt, Moody anticipates his upcoming birthday, mentions a court date, and

comments on various officials—Judge Dozier in particular:

               You gonna see me on my birthday, you bitches, with a big
               [unintelligible] of moho, popping them pills and drinking, getting
               high and trapping. Fuck the law. I’m [unintelligible] on my
               birthday, man. Man, on my birthday, I got the heat on me all day. I
               don’t even kill on my birthday. This, this is what I been waiting
               for: to be out on my motherfucking birthday. I go to court on the
               16th. Bitch, I got my lawyer paid up, ho, so you know I ain’t
               getting locked up. Bitch, I’m gonna keep on running game on this
               PO I got. Fuck him too. He a’ight, but fuck him too. The judge—
               fuck you too. DA—fuck you too. Man, Dozier—Judge Do—Fuck
               you too. I’m gonna [unintelligible] in your courtroom, bitch.
               Man, if I could shoot you right now, bitch, I would.




                                                -2-
No. 14-5205
United States v. Moody

Id. at 9:10-9:57. The parties both relied on this excerpt to argue, respectively, that the video was

recorded before—or else during—the relevant and statutory periods. The district court thus

admitted the excerpt as necessary for the jury to decide when the depicted conduct occurred.

       The final excerpt shows Moody describing his methods and motives as a drug trafficker

while gesturing with a handgun:

               Anybody can get got, don’t get me wrong. But if a n**** try me
               out here, a n**** better have a mask on and disguise himself real
               well. Because if I know who he is, bitch, you ain’t gonna live.
               One of us gonna go. And that’s for sure, man. That’s something I
               know about the game, man. I finally done understand the game,
               man. I know what it is, man. I mean, death around the corner out
               here for y’all fuckboys or for any n****, man. But I know one
               thing: I’m gonna get this money before I go. Wherever I go, I’m
               getting this money. I’m gonna get this money in heaven or hell. It
               don’t even matter. I’m gonna always get money.

Id. at 17:34-18:22. The district court admitted this excerpt as relevant to the charges of drug

trafficking and possessing a firearm in furtherance of that drug trafficking.

         Moody also objected to an audio recording of phone conversations between various

alleged co-conspirators and to the jury instructions. The district court overruled both objections.

This appeal followed.

                                                 II.

       We review evidentiary rulings and jury instructions for an abuse of discretion. See John

B. v. Emkes, 710 F.3d 394, 406 (6th Cir. 2013) (evidentiary rulings); United States v. Carson,

560 F.3d 566, 578 (6th Cir. 2009) (jury instructions).

                                                 A.

       Moody argues that the district court omitted to determine the admissibility of the video

excerpts under Rule 404(b). But Rule 404(b) “does not apply to evidence that itself is probative

of the crime charged[.]” United States v. Price, 329 F.3d 903, 906 (6th Cir. 2003). And here the

                                                -3-
No. 14-5205
United States v. Moody

district court admitted the video excerpts as direct evidence of the crimes charged—not as

evidence of “other acts” under Rule 404(b).

       Moody nevertheless contends that the video depicts “other acts” because it was recorded

in January 2008, and thus before the start of the statute-of-limitations period in November 2008.

See R. 2641 at 111. In the video, Moody says that he is 23 and discusses his upcoming birthday.

(He turned 24 on January 25, 2008.) And Moody alleges that “court on the 16th” could refer

only to a hearing he had on January 16, 2008. But the government responds that Moody’s

timeline is impossible, because Moody’s case involving Judge Dozier was not even filed until

April 2008. Thus, according to the government, the video was likely recorded shortly before

Moody’s next birthday, i.e., in December 2008 or January 2009. Given this dispute, the district

court left the jury to decide for itself when the video was recorded.

       Moody asserts that the district court erred because, if the jury found that the video was

recorded before the statutory period—that is, before November 13, 2008—then the excerpts

would depict uncharged conduct that was inadmissible under Rule 404(b). Even if we accept

Moody’s timeline, however, uncharged criminal conduct is not “other acts” evidence when the

conduct “arises from the same events as” and “is directly probative of the charged offense[.]”

United States v. Clay, 667 F.3d 689, 698 (6th Cir. 2012).

       Here, Moody’s own timeline puts the recording date in January 2008, squarely within the

period identified in the indictment (which was “between in or around January 2008 through in or

around December 2008”). And the video shows the precise conduct alleged in the indictment:

Moody in the specified house, cooking crack, waving a gun, and vowing to use the gun on

anyone who threatened his drug operation. Thus, even if the recorded activities predate the




                                                -4-
No. 14-5205
United States v. Moody

statutory period, they still “arise[] from the same events as” and are “directly probative of the

charged offense[.]” Id.

        Moody next contends that the probative value of the video excerpts was substantially

outweighed by their risk of unfair prejudice—specifically, that allowing the jury to see the video

excerpts would “lead to a decision based upon [the] improper basis [that Moody] had bad

character.” But prejudice is unfair only when it is likely to persuade the jury in an inappropriate

manner. See In re Air Crash Disaster, 86 F.3d 498, 538 (6th Cir. 1996). And the district court

has “broad discretion in balancing probative value against potential prejudicial impact.” United

States v. Lloyd, 462 F.3d 510, 516 (6th Cir. 2006).

        Any prejudice here was fair.         Once the district court removed the inflammatory

comments about Columbine and Virginia Tech, the remaining excerpts posed little risk that the

jury would convict Moody on the basis of his general character. Rather, they showed Moody

possessing a firearm while he engaged in the charged crime, in the precise house and during the

precise period alleged in the indictment. The excerpts thus tended to prove that Moody actually

committed the crimes charged. That is the definition of probative evidence, not of unfair

prejudice. See Black’s Law Dictionary, 677 (10th ed. 2014). The district court did not abuse its

discretion by admitting the video excerpts.

                                                   B.

        Next, Moody argues that the district court’s charge to the jury included two errors related

to the video. First, he contends that the district court failed to include a Rule 404(b) instruction.

For the reasons explained above, however, the video excerpts were not 404(b) evidence and thus

the district court had no need to instruct the jury to that effect.




                                                   -5-
No. 14-5205
United States v. Moody

       Moody also contends that the district court’s instructions “allow[ed] the prosecutor” to

urge the jury “to find [Moody] guilty of the charges in the statute of limitation[s]” because

“Moody was a drug dealer before the statute of limitations[.]” But the district court said the

opposite: “[A] conviction cannot be based upon conduct that occurred before [the statute of

limitations] date. You may consider [Moody’s] conduct prior to the statute of limitations to

evaluate [his] conduct within the statute of limitations and whether the conduct within the statute

of limitations establishes [his] guilt beyond a reasonable doubt.” R. 2663 at 191-92. The district

court further warned the jury that it “[could] not use any pre-statute of limitations conduct for

any other purpose.” Id. Those instructions were correct, and Moody’s argument is meritless.

                                                C.

       Finally, Moody argues that the district court erred by admitting audio recordings of

jailhouse phone calls as admissions by co-conspirators without first finding that the declarants

actually were co-conspirators, as required under Federal Rule of Evidence 801(d)(2)(E). See

United States v. Enright, 579 F.2d 980, 987 (6th Cir. 1978). But the district court did not admit

these conversations as statements by co-conspirators. When Moody’s counsel made the same

objection at trial, he conceded that the alleged co-conspirators were just “making a plan to go

steal somebody’s dope.”      R. 2661 at 12.    The government agreed, and explained that the

statements were thus admissible under the hearsay exception for statements of a then-existing

mental condition because they expressed “motive, intent, or plan.” See Fed. R. Evid. 803(3).

The district court seemed to agree with the government and overruled the objection without

further comment. The district court did not abuse its discretion by declining to make findings

under a rule on which it did not rely.




                                                -6-
No. 14-5205
United States v. Moody

                                          *     *    *

       The district court’s judgment is affirmed.




                                               -7-
