                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-14-2004

USA v. Moore
Precedential or Non-Precedential: Precedential

Docket No. 03-2698




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"USA v. Moore" (2004). 2004 Decisions. Paper 438.
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                        PRECEDENTIAL    Harrisburg, PA 17101

    UNITED STATES COURT OF              Attorney for Appellant
           APPEALS
     FOR THE THIRD CIRCUIT
                                        James T. Clancy, Esq. (Argued)
                                        Office of the United States Attorney
             No. 03-2698                Federal Building
                                        228 Walnut Street
                                        P.O. Box 11754
  UNITED STATES OF AMERICA              Harrisburg, PA 17108

                   v.                   Attorney for Appellee

         DARRICK MOORE,
                    Appellant
                                              OPINION OF THE COURT

   APPEAL FROM THE UNITED
     STATES DISTRICT COURT              BARRY, Circuit Judge
  FOR THE MIDDLE DISTRICT OF
           PENNSYLVANIA                        We begin with the closing argument
      D.C. Crim. No. 02-cr-00097        of the prosecutor:
 District Judge: The Honorable Yvette
                 Kane                                 [S]ta ndin g     here
                                              knowing what date
                                              [September 10, 2002] today
      Argued: February 24, 2004               is I am very, very reluctant
                                              to use the term I’m going to
                                              use, but, frankly, I think this
   Before: RENDELL, BARRY, and                defendant warrants that
       ROSENN, Circuit Judges                 term, and that term is
                                              terrorist.
                                                      There are many
     (Opinion Filed: July 14, 2004)           different kinds of terrorists.
                                              We all know too well the
                                              kinds of terrorists that
                                              caused the attacks of the
James J. West, Esq. (Argued)                  anniversary so-to-speak we
West Long                                     will mark tomorrow. But
105 North Front Street                        there are very different
Suite 205                                     kinds of terrorists, and I
        think this defendant is one                 verdict after only twenty-eight minutes of
        of them.                                    deliberations.
                As you heard the
        evidence today, I think this                        Before placing our stamp of
        evidence can show you that                  approval on the jury’s verdict, however,
        he inflicted terror upon                    we must consider the issues that Moore
        Belinda Newcomer and her                    raises on appeal, and that the government,
        fa m ily, up on Brittany                    defense counsel, 1 and the District Court
        New comer and upon                          simply ignored: Moore was not charged
        Belinda’s son Brandon                       with forcing children or anyone else to
        Newcomer.                                   deal drugs. Neither was he charged with
                You heard testimony                 assault. Nor drug possession. Nor child
        that he was forcing kids to                 abuse. Nor terrorism. In fact, Moore was
        do drug transactions for                    not on trial for anything he may have done
        him. What kind of person                    to Belinda or her family.
        does that?
                                                            Moore was on trial for arson, in
173a.                                               violation of 18 U.S.C. § 844(i), and for
                                                    possession of a firearm by a previously
        The kind of person that does that,          convicted felon, in violation of 18 U.S.C.
is, of course, a very bad person. Indeed,           §§ 922(g) and 924(a)(2). Any observer with
the government’s hyperbolic closing                 even an elemental understanding of the
argument crowned its trial strategy of              Federal Rules of Evidence should have
pillorying defendant Darrick Moore before           wondered how the wide-ranging testimony
the jury. This fact, and fact it be, is best        about drugs, domestic violence, and child
exemplified by the prosecutor’s direct              abuse was appropriate in an arson and gun
examination of the government’s key                 possession trial.        Moreover, what
witness, Belinda Newcomer, through                  justification could the prosecutor have had
whom he elicited the many ways in which             for raising the specter of September 11th
Moore was physically violent, seriously             and calling M oore a terrorist? We cannot
injuring both her and her son. It was also          conceive of any. We will reverse the
seen when the prosecutor, on redirect               judgment and sentence, and grant a new
examination of Belinda’s thirteen year old          trial.
daughter, Brittany, elicited testimony that                       I. Background
Moore punched, kicked and choked her
after she refused to sell drugs for him.
Given all of this, could anyone disagree
with the government that Moore was a bad              1
                                                       Different counsel was appointed to
man if not some species of “terrorist”?
                                                    represent Moore on this appeal, and has
Surely the jury did not; it returned a guilty
                                                    ably done so.

                                                2
       On Christmas Eve of 2001, a fire            objection. The prosecutor then proceeded
occurred at an apartment building located          to elicit from Brittany that Moore had
at 455 North Beaver Street in York,                punched, kicked, and choked her when she
Pennsylvania, and a boy was injured. In            refused to sell drugs. On re-cross, Brittany
mid-February of 2002, Belinda Newcomer,            offered that Moore not only wanted her to
Moore’s ex-girlfriend, came forward to             sell drugs for him, but also wanted her
identify Moore as the person responsible           mother and brother to do so.
for the fire. In April, in the U.S. District
Court for the Middle District of                           Belinda Newcomer took the stand
Pennsylvania, Moore was charged in a two           after her daughter. Belinda began her
count indictment with arson resulting in           testimony by describing the nature of her
personal injury and with possession of a           relationship with Moore. She testified that
firearm by a convicted felon.                      he was in anger management classes; that
                                                   her relationship with him was “very
        Brittany Newcomer, Belinda’s               violent”; that he was a “very hostile man”;
daughter, was the first of four witnesses to       that he was a habitual drug user; that he
testify for the government. On direct              threw her down a flight of stairs with the
examination, Brittany testified that she saw       result that she was hospitalized in critical
Moore with a gun when he lived with her            condition; that he repeatedly punched her
mother. She further testified that Moore           in the face; that he severely beat her son,
warned her not to tell her mother about the        cracking three of his ribs and leaving scars
gun or he would hurt her. On cross-                on his face and neck; that her son was
examination, defense counsel asked                 taken by Child Services for fear that he
Brittany why she had waited so long                would again be hurt by Moore; and that
before telling her mother about the gun.           she feared for her life and the lives of her
Brittany replied that she feared being hurt        children. Defense counsel at no point
by Moore. On re-direct, the prosecutor             objected and the District Court did not
asked Brittany if Moore had hurt her in the        intervene.
past. Brittany responded that he had hurt
her because she had refused to sell drugs                  Having set the scene with her
for him. Presumably on the ground that             description of Moore’s violent behavior,
Moore had now been called a drug dealer            Belinda turned to the events which took
who used children to sell his drugs,               place on Christmas Eve. She testified that
defense counsel objected: “[t]his is far           Moore awoke her (the two were at that
beyond cross-examination, and it’s beyond          time living together) and asked her to drive
the scope of this trial.” The prosecutor           him to a location he did not then disclose.
countered only that the defense had made           She agreed to do so. Moore first directed
an issue of why Brittany had waited so             Belinda to a gas station, where he filled a
long to tell her mother about the gun. The         red plastic gas can with fuel, and they then
District Court agreed, and overruled the           drove to 455 North Beaver Street. Moore

                                               3
got out of the car with the gas can,                 calling Moore a terrorist. Again, no
instructed Belinda to stay in the car, and           objection was made by defense counsel.
disappeared behind the building. Minutes
later, he came running back, smelling of                    The Court then instructed the jury,
gasoline, and instructed her to drive them           and the verdict was returned in twenty-
away. As they drove off, Moore remarked              eight minutes.
to Belinda that he had finally gotten even
with “someone he had been angry at and                             II. Discussion
that no one is going to ‘f’ with ‘D.’”
                                                            Moore urges us to overturn his
        Two other witnesses took the stand.          conviction on two grounds.2 First, he
Melissa Strunk Layer, who was then                   contends that the District Court improperly
incarcerated on drug charges, testified that         admitted the testimony of Brittany and
she knew Moore from dealing in crack                 Belinda Newcomer concerning his alleged
cocaine. She had not seen Moore since                prior bad acts, in violation of Federal Rule
having a disagreement with him about the             of Evidence 404(b).3 Second, he contends
purchase of $20 of crack. Presumably, it
was this dispute that motivated the arson:             2
on Christmas Eve of 2001, Melissa Strunk                Moore filed a timely notice of appeal.
Layer lived at 455 Beaver St., the location          We have jurisdiction under 28 U.S.C. §
of the fire.                                         1291 and 18 U.S.C. § 3742.
                                                       3
         Finally, York City Police Officer
                                                     Federal Rule of Evidence 404(b) provides:
Troy Cromer offered into evidence a gun
retrieved by police from Moore’s former
                                                            Other crimes, wrongs, or
place of employment, a gun that fit the
                                                            acts. Evidence of other
description given by Belinda and Brittany
                                                            crimes, wrongs, or acts is
of the gun to have been in Moore’s
                                                            not admissible to prove the
possession. Officer Cromer–qualified at
                                                            character of a person in
trial as an expert investigator of the origins
                                                            order to show action in
and causes of fire–also testified that the
                                                            conformity therewith. It
fire was set intentionally, and that a red
                                                            may, however, be
plastic gas can was recovered from the
                                                            a d m i s s i b l e f o r o t h er
scene.
                                                            purposes, such as proof of
                                                            motive, opportunity, intent,
       The government rested its case, and
                                                            pre p aration,            plan,
Moore followed suit without calling any
                                                            knowledge, identity, or
witnesses. Closing arguments were then
                                                            absence of mistake or
presented to the jury. The prosecutor
                                                            accident, provided that upon
launched into his closing argument by
                                                                                      (continued...)

                                                 4
that the prosecutor’s closing argument               only if (4) the error seriously affects the
unfairly prejudiced him.                             fairness, integrity, or public reputation of
                                                     judicial proceedings.” Johnson v. United
A.           Standard of Review                      States, 520 U.S. 461, 467 (1997) (citations
                                                     and quotation marks omitted). See also
       The Federal Rules of Evidence                 United States v. Plotts, 359 F.3d 247, 249
require a timely and specific objection to           (3d Cir. 2004) (“Under plain error review,
evidence erroneously admitted. Fed. R.               we may grant relief if (1) the District Court
Evid. 103(a)(1). Where an objection is               committed an error, (2) it was plain, and
properly made, we review a district court’s          (3) it affected substantial rights of the
ruling for abuse of discretion. United               defendant.”) (citation and quotation marks
States v. Givan, 320 F.3d 452, 463 (3d Cir.          omitted).
2003). Where, however, a party fails to
object in a timely fashion or fails to make                  Similarly, a failure to sustain an
a specific objection, our review is for plain        objection to a prosecutor’s closing
error only. United States v. Boone, 279              argument is typically reviewed for abuse
F.3d 163, 188 (3d Cir. 2002). See also               of discretion. United States v. Molina-
United States v. Sandini, 803 F.2d 123,              Guevera, 96 F.3d 698, 703 (3d Cir. 1996).
126 (3d Cir. 1986) (holding that failure to          But, again, defense counsel never said a
object with specificity does not preserve a          word when his client was likened to one of
Rule 404(b) issue for appeal). It is well-           the September 11th terrorists, nor did the
settled that to establish plain error, a             District Court. And so, again, the standard
defendant must show “(1) error, (2) that is          of review is plain error. United States v.
plain, and (3) that affects substantial              Tiller, 302 F.3d 98, 105 (3d Cir. 2002).
rights. If all three conditions are met, an
appellate court may then exercise its                B.     Plain Error Pervaded the Trial
discretion to notice a forfeited error, but
                                                            Inadmissible evidence and highly
                                                     inflammatory statements came rolling in
     3                                               unimpeded at Moore’s trial, without any
         (...continued)
                                                     hesitation by the prosecutor, complaint by
              request by the accused, the
                                                     defense counsel, or correction by the
              prosecution in a criminal
                                                     District Court. Indeed, at only one point
              case shall provide
                                                     when irrelevant but enormously prejudicial
              reasonable notice in advance
                                                     evidence and wholly inappropriate
              of trial, or during trial if the
                                                     statements came before the jury did
              court excuses pretrial notice
              on good cause shown, of the
              general nature of any such
              evidence it intends to
              introduce at trial.

                                                 5
defense counsel object, 4 and that objection                When the instruction was given to
was not at all specific. His failure to             the jury, however, the District Court stated
object, of course, did not relieve the              that the testimony that Moore “committed
prosecutor of his duty to comply with the           some acts other than the ones charged in
Federal Rules of Evidence and, even more            the indictment” was permitted “only as
importantly, rules of fundamental fairness.         background to the events at issue here,”
There was a serious breakdown here.                 and could be considered only for that
                                                    purpose and not as evidence that he
       As for the evidence of M oore’s              committed the crimes with which he was
“Other Crimes, Wrongs, or Acts,” i.e., the          charged. Parenthetically, we are unaware
Rule 404(b) evidence, which came in                 of any case under Rule 404(b) that would
principally through Belinda and Brittany            permit the use of the type of evidence seen
Newcomer, let us be quite clear. We are             here as “background,” and the government
not reviewing the District Court’s decision         has proffered none. At the conclusion of
to admit this evidence, because the                 the charge, the prosecutor asked the
evidence came in bereft of any motion to            District Court to further instruct the jury,
admit; bereft of any prior notification of          as the government puts it here, that “many
the general nature of the Rule 404(b)               of [Moore’s] statements and actions
evidence the government intended to                 provided proof of motive for the arson.”
introduce; bereft of any objection by               Appellee’s Br. at 11-12. Defense counsel,
defense counsel; and bereft of any exercise         albeit “reluctantly,” agreed, and the
of control on the part of the District Court.       District Court so instructed the jury.
Indeed, Rule 404(b) never once came up
during the course of trial until the District               Putting aside the virtual silence as
Court sua sponte (because neither defense           to Rule 404(b) during the course of trial, in
counsel nor the government had submitted            order to be admissible under 404(b), “(1)
a proposed jury instruction as to 404(b)),          the evidence must have a proper purpose
asked during the charge conference                  under Rule 404(b); (2) it must be relevant
whether there was any need to instruct the          under Rule 402; (3) its probative value
jury regarding M oore’s “prior crimes or            must outweigh its potential for unfair
bad acts.” Counsel both agreed that that            prejudicial effect under Rule 403; and (4)
would be appropriate.                               the Court must charge the jury to consider
                                                    the evidence only for the limited purpose
                                                    for which it is admitted.” United States v.
                                                    Vega, 285 F.3d 256, 261 (3d Cir. 2002)
  4                                                 (citing, among others, Huddleston v.
    The sole objection, difficult as it may
                                                    United States, 485 U.S. 681, 691-92
be to believe, was during Brittany’s re-
                                                    (1988)). The evidence here, at least that
direct, to wit: “This is far beyond cross
examination, and it’s beyond the scope of
this trial.” 30a.

                                                6
evidence elicited from Belinda,5 fails each         “there are very different kinds of terrorists,
and every one of these requirements.                and I think this defendant is one of them.”
Rather, what is crystal clear is that the           Why? Because “he inflicted terror upon
evidence came in for one reason and one             Belinda Newcomer and her family, upon
reason only: to demonstrate Moore’s                 Brittany Newcomer and upon Belinda’s
propensity to act in a particular manner,           son Brandon Newcomer. . . . [H]e was
i.e., to be a very violent man, whose               forcing kids to do drug transactions for
violence made the arson and the gun                 him. What kind of person does that?” The
possession more likely.            Admitting        prosecutor marshaled the most damning of
evidence of other bad acts for this purpose         the 404(b) evidence and emphasized it to
is, of course, prohibited. See, e.g., Ansell        the jury. Why should the jury convict?
v. Green Acres Contr. Co, 347 F.3d 515,             Because, he explained, of what Moore did
520 (3d Cir. 2003) (“Rule 404(b) . . .              to the Newcomers. He is, in a nutshell, a
prohibits the admission of other acts               bad man who should be stopped at all
evidence for the purpose of showing that            costs.
an individual has a propensity or
disposition to act in a particular manner.”).              Moore was not, of course, on trial
                                                    for anything he did to the Newcomers.
        Were there any doubt that admitting         But yet again, there was no objection from
evidence of the numerous other bad acts             defense counsel, and the District Court did
alleged to have been committed by Moore             not intervene. Indeed, the Court, in the
would alone require reversal, the                   course of denying Moore’s motion for a
compounding effect of the prosecutor’s              new trial based on the prosecutorial
inflammatory closing argument forecloses            misconduct inherent in the closing
any argument that reversal is not                   argument, remarked:
warranted. Thus, on the eve of the one
year anniversary of the September 11th                     [T]he government produced
terrorist attacks, the prosecutor called                   ample evidence which, if
Moore a terrorist. No, said the prosecutor,                believed by the jury, would
Moore was not one of those terrorists, but                 support [the prosecutor’s]
                                                           argument that Defendant
                                                           used terror to coerce [and
  5                                                        the] characterization of
    Given the prejudicial nature of the
                                                           Defendant as one who used
testimony elicited from Belinda on direct
                                                           terror to coerce was within
examination, we do not pause to also
                                                           a ccepta ble b o unds o f
discuss the challenged portion of
                                                           advocacy for conclusions
Brittany’s testimony nor to determine
                                                           the jury could adopt from
whether defense counsel opened the door
                                                           the evidence presented.
to the purported rehabilitation of Brittany
that followed.

                                                7
But the evidence that the Court found                     of Evidence are clear and unambiguous on
“ a c c e p t ab l e ” w a s p r e j u d i c ia l ,       this matter: irrelevant and prejudicial
administering the death blow to the closing               evidence is inadmissible. The evidence at
argument, which tracked that evidence.                    issue here–Moore’s alleged violence, drug
                                                          use, and general criminal proclivity–was
        We have reversed convictions                      highly prejudicial and wholly irrelevant to
where “[t]he object, or at least effect, of               the arson and gun possession charges he
this disproportionate emphasis by the                     faced. Second, the error was plain,
prosecution . . . was to portray [the                     stigmatizing M oore for b ehav ior
defendant] as . . . violence-prone . . . [and]            unconnected to those charges. Finally, we
a danger to society and who needed to be                  are certain that the error affected M oore’s
removed for the protection of the public.”                substantial rights. We cannot know, given
United States v. Himelwright, 42 F.3d 777,                the evidence that came in, whether Moore
786 (3d Cir. 1994). In Himelwright,                       was convicted because the jury believed
although operating under an abuse of                      him to be an arsonist and the illegal
discretion standard of review, we reversed                possessor of a gun, or because it thought
a conviction due to concerns that the                     him to be a violent and dangerous man, a
government’s emph asis on 404 (b)                         “terrorist” of sorts. We are inclined to
evidence in its closing argument tainted                  believe the latter. Such uncertainty in the
the trial in two regards: “First, it had the              face of plain error “seriously affect[s] the
potential for frightening the jury into                   fairness, integrity or public reputation of
ignoring evidence that otherwise might                    judicial proceedings.” United States v.
have raised a reasonable doubt . . . .                    Atkinson, 297 U.S. 157, 160 (1936). See
Second, if the jury was persuaded that [the               generally United States v. Olano, 507 U.S.
defe ndan t] was violence-prone by                        725, 734-36 (1993) (discussing plain
character, it might have inferred that he                 error).
intended violence in this particular
instance. That inference is precisely what                             III. Conclusion
Rule 404(b) prohibits.” Himelwright, 42
F.3d at 786 n.8. See also United States v.                        Whether we apply the constitutional
Morley, 199 F.3d 129, 137-38 (3d Cir.                     harmless error doctrine that requires a
1999) (“This frontal assault upon the                     showing by the government that the error
defendant’s character is simply not                       was harmless beyond a reasonable doubt
appropriate under our system of laws, and                 or the non-constitutional harmless error
the trial court abused its discretion in                  doctrine that requires a showing that it is
admitting it.”). Plain error was committed                highly probable the error did not contribute
here.                                                     to the judgment, see Molina-Guevara, 96
                                                          F.3d at 703, we conclude that singly or in
       First, there can be no doubt that                  combination, the admission of the Rule
error was committed. The Federal Rules                    404(b) evidence and the prosecutor’s

                                                      8
closing argument require that the judgment          this testimony was not overshadowed by
and sentence be reversed for plain error,           overwhelming other evidence of Moore’s
and the case remanded to the District               guilt; in fact, the other substantive
Court with directions to grant Moore a              evidence related to the crimes that were
new trial.                                          relevant at trial was relatively thin,
                                                    consisting primarily of Belinda’s
RENDELL, Circuit Judge, Concurring.                 testimony and the identification of a red
        I agree with the view that plain            gas can. Accordingly, the trial judge’s
error occurred here by virtue of the                failure to act amounts to plain error in
admission of evidence that villainized              large measure due to the predominance of
Moore based on prior bad conduct that was           the problematic evidence that was
totally unrelated to the offenses charged.          presented to the jury.
I write to decry situations in which the                    While a trial judge should not let
deficient performances of both the                  this happen, it is far easier for us to say so
prosecutor and defense counsel lead to a            from our vantage point, with the twenty-
predicament like the one faced by the trial         twenty hindsight that we enjoy on appeal,
judge here, namely, when such evidence is           than it is for the judge to determine mid-
improperly presented by the prosecution,            trial at what point enough is enough. It
and when defense counsel improperly fails           would be a far better thing for counsel –
to object. While I agree that the trial judge       prosecution and defense alike – not to put
should have taken action here based on the          judges into this predicament in the first
exceptionally egregious nature of the               instance, by adhering and policing
violations of Rule 404(b), nonetheless, in          adherence to the Rules of Evidence. Here,
typical cases trial judges instinctively, and       counsel utterly and inexplicably failed to
usually quite properly, let the adversary           do so.
process unfold. It is understandable that
judges are inclined to leave evidentiary
issues to the attorneys to challenge or not,
as they see fit, because ours is essentially
an adversary system, and judicial
interference can have tactical implications.
        The instant situation, however,
differs in degree from a normal case. The
sheer heft of the truly damaging and
irrelevant conduct, catalogued in the
majority opinion, quite probably diverted
the jury’s attention from the relevant issues
of proof. There was not just one error;
there were strings of testimony focused on
inadmissible and irrelevant prior acts. And

                                                9
