           Case: 14-12980   Date Filed: 05/15/2015   Page: 1 of 14


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-12980
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 9:13-cr-80034-KAM-21



UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                   versus

FRANK DAVIS MOORE, JR.,
a.k.a. Bow Head,
a.k.a. Bodeen,

                                                      Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (May 15, 2015)

Before WILSON, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Frank Davis Moore, Jr. appeals his conviction for conspiracy to possess with

intent to distribute 280 grams or more of cocaine base, in violation of 21 U.S.C. §§

841(a)(1), 846. Moore’s conviction stems from his alleged participation in a drug

conspiracy in Palm Beach County, Florida. His involvement was ascertained from

numerous government-intercepted phone calls, wherein Moore repeatedly

purchased or attempted to purchase cocaine from one of his co-conspirators,

George Bivins, Jr.

      After a federal grand jury issued an indictment charging Moore and 29 other

individuals with multiple counts pertaining to schemes to distribute powder

cocaine and crack cocaine, Moore and codefendant Jerrick Bartee, who faced

charges pertaining to a conspiracy to distribute powder cocaine, proceeded to a

joint jury trial. The remaining 28 codefendants entered guilty pleas. On the fifth

day of a six-day trial, Bartee also pled guilty and left the trial proceeding. Moore

moved for a mistrial but the motion was denied.

      The jury subsequently convicted Moore of the one count with which he was

charged, conspiracy to possess with intent to distribute 280 grams or more of

cocaine base. Moore moved for a new trial, which the district court denied, and

this appeal ensued. Moore raises several issues on appeal, which we address in

turn. After considering the briefs of the parties and reviewing the record on

appeal, we affirm.


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                                          I.

A. Motion to Compel Disclosure

      On appeal, Moore argues that the district court abused its discretion by

denying his motion to compel the government to disclose the identity of the

confidential informants (CIs) whom investigators utilized during their

investigations into the underlying drug conspiracies. Moore contends that the

court improperly disregarded his argument that an “independent defense

investigation” had uncovered that one of the CIs had a significant criminal history,

which suggested that this CI or other CIs may have falsely implicated Moore in the

crack-cocaine conspiracy. Moore also contends that, although protection for the CI

must be considered in any request to disclose a confidential source’s identity, that

factor should have been weighed against the right to confrontation.

      We apply an abuse of discretion standard when reviewing the district court’s

denial of a motion to disclose the identity of a confidential informant. United

States v. Gutierrez, 931 F.2d 1482, 1490 (11th Cir. 1991). In determining whether

the government must disclose an informant’s identity, a court must conduct a

balancing test, focusing particularly on three factors: (1) “the extent of the

informant’s participation in the criminal activity”; (2) “the directness of the

relationship between the defendant’s asserted defense and the probable testimony

of the informant”; and (3) “the government’s interest in nondisclosure.” United


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States v. Tenorio-Angel, 756 F.2d 1505, 1509 (11th Cir. 1985). The defendant has

the burden of showing that a CI’s testimony “would significantly aid in

establishing an asserted defense.” Gutierrez, 931 F.2d at 1491 (internal quotation

marks omitted).

      Here, Moore fails to demonstrate how disclosure of the CIs’ identities would

“significantly aid in establishing [his] asserted defense.” See id. (internal quotation

marks omitted). Instead, in his motion to compel disclosure, Moore only made the

conclusory statement that the disclosure would be relevant to his defense. See id.

(“Mere conjecture about the possible relevance of [the CI’s] testimony is

insufficient to compel disclosure.”).

      As for his argument that the CI’s criminal history suggests that a CI falsely

implicated him in the underlying crack-cocaine conspiracy, this claim also does not

rise above “[m]ere conjecture” that the CIs have been untruthful. See id. Further,

there is no blanket requirement for the defendant to confront every CI utilized in an

underlying investigation; this is not one of the three factors that courts balance in

deciding whether to override the government’s privilege to keep sources

confidential. See Tenorio-Angel, 756 F.2d at 1509.

      Also, Moore’s right to confrontation under the Sixth Amendment refers to

confronting witnesses against him, and thus would apply to CIs only if the

government presented them as witnesses or otherwise presented their testimony.


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See U.S. Const. amend VI; McAllister v. Brown, 555 F.2d 1277, 1278 (5th Cir.

1977) (per curiam) (rejecting the argument that the state’s failure to disclose an

informant’s identity violated the defendant’s Sixth Amendment right to confront

the witnesses against him). 1 Here, the CI statements were used by the government

for the limited purpose of demonstrating why investigators believed they had

established probable cause in order to apply for a Title III wiretap. 2 Thus, we do

not find that the district court abused its discretion in denying Moore’s motion to

disclose the identity of confidential informants.

B. Sufficiency of the Evidence

       Moore next argues that there was insufficient evidence to support his

conviction for conspiring to possess with intent to distribute crack cocaine. He

contends that evidence of the mere existence of a “buyer-seller” relationship with

codefendant Bivins does not prove that he conspired to sell crack cocaine. Moore

also avers that the government failed to show that he had possessed large quantities

of money, crack cocaine, or other items related to the conspiracy.

       We review de novo a verdict challenged for sufficiency of the evidence,

“resolving all reasonable inferences in favor of the verdict.” United States v.

       1
          See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc)
(adopting as binding precedent all decisions of the former Fifth Circuit handed down prior to the
close of business on September 30, 1981).
        2
          While testifying, the lead investigating agent, Deputy Charles Ferry, referenced the
actions and statements of CIs made during controlled buys with co-conspirator Bivins, which
established the probable cause necessary to obtain the wiretap. The CI statements were not used
to implicate Moore.
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Farley, 607 F.3d 1294, 1333 (11th Cir. 2010). If there is a reasonable basis in the

record for the verdict, we must sustain it. Id. To convict a defendant of conspiracy

under 21 U.S.C. § 846, the government must prove beyond a reasonable doubt that

there was (1) an agreement between the defendant and at least one other person, (2)

the object of which was to violate the narcotics laws. United States v. Toler, 144

F.3d 1423, 1426 (11th Cir. 1998). The government may prove these elements by

circumstantial evidence, and need not demonstrate the existence of a formal

agreement. Id. An “agreement may be inferred when the evidence shows a

continuing relationship that results in the repeated transfer of illegal drugs to the

purchaser.” United States v. Mercer, 165 F.3d 1331, 1335 (11th Cir. 1999) (per

curiam).

      Here, there was sufficient evidence to support Moore’s conviction for

conspiracy to possess with intent to distribute crack cocaine. The jury reasonably

could have inferred that Moore and codefendant Bivins had an ongoing

relationship to distribute crack cocaine, based on testimony and wiretap records

detailing that Moore purchased or sought to purchase from Bivins a total of 20

ounces, or 560 grams, of crack cocaine over less than two months. The volume

and frequency of sales imply that Moore and Bivins had an ongoing agreement to

further distribute crack cocaine. See id. Additionally, testimony from

investigating agents placed Moore multiple times at locations where Bivins was


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known to sell crack cocaine and testimony that Bivins entered Moore’s vehicle

with an unidentified package.

      Finally, even assuming that the lack of evidence showing that Moore

physically possessed large amounts of drugs or money reasonably suggests that he

was not involved in an agreement to distribute crack cocaine, the jury was free to

choose the other reasonable hypothesis that the volume and frequency of sales

implicated a broader conspiracy. See Farley, 607 F.3d at 1333; see also Toler, 144

F.3d at 1430.

C. Admissibility of Testimony

      Moore argues that the district court “committed plain error” in admitting

certain portions of testimony by lead investigating agent Charles Ferry, on the

grounds that the testimony’s admission violated the Sixth Amendment’s

Confrontation Clause as well as evidentiary rules against inadmissible hearsay.

      With regard to testimony about wiretap communications, Moore contends

that Ferry improperly interpreted certain intercepted conversations. Moore also

argues that this portion of Ferry’s testimony was composed exclusively of out-of-

court statements that did not qualify for the co-conspirator hearsay exemption

under Federal Rule of Evidence 801(d)(2)(E). Further, with regard to out-of-court

statements by a CI—which concerned controlled buys the CI made while

investigators tried to establish probable cause for a wiretap—Moore avers those


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statements were impermissible because the CI’s statements were unnecessary for

the government’s case. Moore also argues in the alternative that, even if Ferry’s

recounting of the CI’s statements did not constitute inadmissible hearsay, its

“probative value” was greatly outweighed by its prejudicial effect.

      We normally review a district court’s evidentiary rulings for abuse of

discretion and the factual findings underlying those rulings for clear error. See

United States v. Lebowitz, 676 F.3d 1000, 1009 (11th Cir. 2012) (per curiam).

However, plain-error rule applies where, as here, a defendant fails to

contemporaneously object to an evidentiary ruling. See United States v. Turner,

474 F.3d 1265, 1275 (11th Cir. 2007).

      Hearsay evidence is inadmissible unless the statement is deemed not hearsay

under Federal Rule of Evidence 801(d), or it falls within a hearsay exception.

United States v. Baker, 432 F.3d 1189, 1203 (11th Cir. 2005). Statements made by

a co-conspirator “during and in furtherance of the conspiracy” are not hearsay.

Fed. R. Evid. 801(d)(2)(E). We apply a liberal standard in determining whether a

statement is made in furtherance of a conspiracy. United States v. Santiago, 837

F.2d 1545, 1549 (11th Cir. 1988).

      The Confrontation Clause of the Sixth Amendment prohibits only statements

that constitute impermissible hearsay; it “does not bar the use of testimonial

statements for purposes other than establishing the truth of the matter asserted.”


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United States v. Jiminez, 564 F.3d 1280, 1286–87 (11th Cir. 2009) (internal

quotation marks omitted).

       (1) Wiretap Communications

      Moore has not demonstrated that the district court erred, plainly or

otherwise, in admitting Agent Ferry’s testimony about the wiretap

communications. Agent Ferry’s testimony regarding the intercepted

conversations in the wiretap communications does not constitute hearsay. First,

any out-of-court statements made by Moore himself in the intercepted phone calls

and text messages constitute prior party admissions. See Fed. R. Evid.

801(d)(2)(A) (statements made by and offered against an opposing party are not

hearsay).

      Second, out-of-court statements by declarant Bivins fall under Rule 801’s

co-conspirator exception, because they were made in furtherance of the conspiracy

to distribute crack cocaine. See Fed. R. Evid. 801(d)(2)(E); Bourjaily v. United

States, 483 U.S. 171, 175, 107 S. Ct. 2775, 2778 (1987). Additionally, because

Ferry’s testimony about the wiretap’s intercepted communications does not

constitute hearsay and instead meets the requirements for admissibility under Rule

801(d)(2)(E), there are no grounds for a claim that the Confrontation Clause was

violated. See United States v. Cross, 928 F.2d 1030, 1051–52 (11th Cir. 1991).




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      Moore also raises arguments regarding Agent Ferry’s interpretation of

testimony. However, “[a] witness [may be] qualified as an expert by knowledge,

skill, experience, training, or education.” Fed. R. Evid. 702. We have held that

“[t]he operations of narcotics dealers are a proper subject for expert testimony

under Rule 702,” and it is a “well-established rule that an experienced narcotics

agent may testify as an expert to help a jury understand the significance of certain

conduct or methods of operation unique to the drug distribution business.” United

States v. Garcia, 447 F.3d 1327, 1335 (11th Cir. 2006) (internal quotation marks

omitted). Thus, because Agent Ferry qualified as an expert in street-level

narcotics, his testimony providing definitions for alleged “code words” and other

drug jargon such as “circle” or “chips” was admissible. See id. (affirming “the

admission under Rule 702 of the expert testimony of a police officer interpreting

drug codes and jargon” (internal quotation marks omitted)).

      (2) CI’s Out-of-Court Statements

      Moore has not demonstrated that the district court erred, plainly or

otherwise, in admitting Agent Ferry’s testimony about the CI’s out-of-court

statements. Agent Ferry’s testimony regarding the CI’s statements does not

constitute hearsay, because the testimony was not admitted to prove the truth of the

matter asserted. See Fed. R. Evid. 801(c). Instead, it was received for the limited

purpose of showing the reason why investigators believed they had established


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probable cause in order to apply for a Title III wiretap. Hence, because this

testimony does not constitute hearsay, there are no grounds for a claim that the

Confrontation Clause was violated. See Jiminez, 564 F.3d at 1286–87. Nor was

this testimony unnecessary and highly prejudicial. Agent Ferry’s account of the

CI’s actions and out-of-court statements did not implicate Moore, but were

restricted to the CI’s dealings with codefendant George Bivins during controlled

buys. Any potential for prejudice against Moore, therefore, was negligible.

D. Motion for Mistrial

      Additionally, Moore argues that the district court erred in denying his

motion for a mistrial. He contends that he suffered “irreparable prejudice” when

his codefendant, Bartee, entered a guilty plea while their joint trial was ongoing, at

which point the majority of evidence presented by the government had concerned

Bartee and the powder-cocaine conspiracy with which he was charged. Moore,

however, had been charged with participating in a conspiracy to distribute crack

cocaine, and he avers he had no connection to the powder-cocaine conspiracy.

Moore contends that, as a result of Bartee’s departure from the trial, the jury’s

perception of him became prejudicially skewed.

      We review a district court’s denial of a motion for a mistrial for abuse of

discretion. United States v. Trujillo, 146 F.3d 838, 845 (11th Cir. 1998). “When a

district court issues a curative instruction, we will reverse only if the evidence is so


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highly prejudicial as to be incurable by the trial court’s admonition.” Id. (internal

quotation marks omitted).

      Here, the mere fact that a majority of the evidence supported a guilty plea

for codefendant Bartee does not result in compelling prejudice against Moore. See

United States v. Walker, 720 F.2d 1527, 1533 (11th Cir. 1983) (noting that

compelling prejudice does not result “simply because much of the evidence

presented at trial is applicable only to [the defendant’s] codefendants”).

Furthermore, the court provided instructions to the jury to counter any effect

rendered by Bartee’s absence. The court instructed the jury prior to trial to give

each defendant’s case separate consideration. After Bartee departed the trial

proceedings, the court told the jury to refrain from drawing any conclusions about

his absence. Further, in charging the jury, the court stated that Moore should be

judged only for the specific crime charged against him. See Trujillo, 146 F.3d at

845. Thus, the district court did not abuse its discretion by denying Moore’s

motion for a mistrial.

E. Motion for a New Trial

      Lastly, Moore argues that the district court abused its discretion by denying

his motion for a new trial pursuant to Federal Rule of Criminal Procedure 33.

Several of his arguments in this respect are reiterations of previous arguments

addressed, including that the evidence was insufficient to support conviction and


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that Moore suffered prejudice before the jury on account of codefendant Bartee’s

departure during the joint trial.

      Rule 33 provides that, “[u]pon the defendant’s motion, the court may vacate

any judgment and grant a new trial if the interest of justice so requires.” Fed. R.

Crim. P. 33(a). We review the denial of a Rule 33 motion for abuse of discretion.

United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en banc). Under

this standard, we may reverse the denial of a Rule 33 motion only if the district

court made a clear error of judgment or applied the wrong legal standard. See

United States v. White, 590 F.3d 1210, 1214 (11th Cir. 2009).

      The district court did not abuse its discretion in denying Moore’s Rule 33

motion for a new trial. As discussed above, the fact that the majority of the

government’s evidence presented prior to codefendant Bartee’s departure had

concerned the powder-cocaine conspiracy—instead of the crack-cocaine

conspiracy with which Moore was charged—does not indicate that Moore suffered

any prejudice. See Walker, 720 F.2d at 1533–34.

      Also, as discussed above, there is no indication that Moore became

improperly associated with the evidence regarding the powder-cocaine conspiracy,

as the court gave multiple jury instructions for Moore to be tried only on the

offense with which he was charged. See Trujillo, 146 F.3d at 845. Therefore,

Moore fails to demonstrate that the district court made a clear error of judgment or


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applied the wrong legal standard in denying the motion for a new trial on these

grounds. See White, 590 F.3d at 1214.

                                        II.

      After considering all arguments raised in the parties’ briefs and reviewing

the record on appeal, we affirm Moore’s conviction.

      AFFIRMED.




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