           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                    2     United States v. Moore                       No. 02-6342
        ELECTRONIC CITATION: 2004 FED App. 0231P (6th Cir.)
                    File Name: 04a0231p.06                            STATES ATTORNEY, Louisville, Kentucky, for Appellee.
                                                                      ON BRIEF: Larry D. Simon, SIMON & SIMON,
                                                                      Louisville, Kentucky, for Appellant. Larry E. Fentress, Terry
UNITED STATES COURT OF APPEALS                                        M. Cushing, UNITED STATES ATTORNEYS, Louisville,
                                                                      Kentucky, for Appellee.
                  FOR THE SIXTH CIRCUIT
                    _________________                                                     _________________

 UNITED STATES OF AMERICA , X                                                                 OPINION
            Plaintiff-Appellee, -                                                         _________________
                                  -
                                  -  No. 02-6342                         FRIEDMAN, Circuit Judge. The appellant Derrick D.
           v.                     -                                   Moore challenges his convictions for armed bank robbery,
                                   >                                  homicide and assault during the robbery, possessing a firearm
                                  ,                                   as a convicted felon, and possessing cocaine base. He raises
 DERRICK D. MOORE ,               -
         Defendant-Appellant. -                                       various issues: that the district court should have bifurcated at
                                                                      trial the felon-in-possession charge into its component
                                 N                                    elements of possession and felony conviction; that improper
      Appeal from the United States District Court                    references were made during the trial to his prior conviction;
   for the Western District of Kentucky at Louisville.                that the prosecutor had asked a witness improper questions;
   No. 01-00035—Thomas B. Russell, District Judge.                    that the prosecutor improperly disclosed to a witness that the
                                                                      latter had identified the wrong person at a lineup; and that the
                    Argued: March 12, 2004                            court improperly directed a supplemental interrogatory to the
                                                                      jury, to determine the amount of drugs Moore possessed, after
               Decided and Filed: July 20, 2004                       it had announced its guilty verdict. We decide all of these
                                                                      issues against Moore and affirm his convictions.
  Before: NELSON, MOORE, and FRIEDMAN, Circuit
                    Judges.*                                                                          I

                      _________________                                 The evidence, the sufficiency of which Moore does not
                                                                      contest, shows the following facts: Co-defendant Tiffany
                           COUNSEL                                    Pennington committed an armed bank robbery in Louisville,
                                                                      Kentucky, during which he shot and killed a bank employee.
ARGUED: Larry D. Simon, SIMON & SIMON, Louisville,                    Pennington fled in an automobile that was abandoned in a
Kentucky, for Appellant. Larry E. Fentress, UNITED                    nearby mall. A cellular phone found in the car was traced to
                                                                      Pennington. Later that afternoon, Moore contacted Richard
                                                                      Jewell, and the two of them retrieved the handgun used in the
    *
                                                                      robbery from a ditch. Jewell kept the gun until it was turned
    Daniel M. Friedman, Circuit Judge of the United States Court of   over to law enforcement officers a few days later. Ballistic
Appeals for the Federal Circuit, sitting by designation.

                                1
No. 02-6342                     United States v. Moore       3    4     United States v. Moore                       No. 02-6342

tests showed that this was the gun that Pennington used                                          II
during the robbery to kill the bank employee.
                                                                     A. Prior to trial, Moore moved to bifurcate the felon-in-
  Police went to the house of Moore’s girlfriend and              possession charge because of the alleged prejudicial effect the
interviewed Moore, who stated there were no drugs in the          introduction of evidence relating to his prior conviction could
house. After the girlfriend consented to a search of the home,    and would have on the jury. He proposed that the jury should
the officers found 188 grams of a substance containing crack      determine only whether he possessed a handgun, and that
cocaine.                                                          only if the jury found that he had would his felony conviction
                                                                  be introduced. The district court ultimately denied that
  Moore’s connection with the bank robbery, murder and            motion, reasoning that since his criminal history was relevant
assault was two-fold. First, a few days before the robbery,       to the other charges, his prior conviction would inevitably be
Moore asked Jewell to purchase a handgun for him. He did          disclosed to the jury; therefore, reference to it in connection
so because, as a convicted felon, he could not legally himself    with the gun possession charge would not prejudice Moore.
purchase a firearm. Shortly thereafter, Moore drove Jewell to     Moore then stipulated to his prior conviction.
a pawnshop to purchase the gun; a few days later Moore and
Jewell returned to the pawnshop and received the gun and             The determination whether to bifurcate a particular count
ammunition.                                                       lies within the discretion of the district court, and we review
                                                                  a refusal to bifurcate for abuse of discretion. Several other
  Second, Moore was the driver of the getaway car, which          circuits have held that a district court’s decision against
Moore and Pennington had stolen earlier the same day. Two         bifurcating a felon-in-possession count is reviewed for abuse
eyewitnesses identified Moore as the driver. Telephone            of discretion. See, e.g., United States v. Belk, 346 F.3d 305,
records showed that Moore called Pennington several times         310 (2d Cir. 2003) (“[A] district court’s exercise of its
on the morning of the robbery.                                    discretion in refusing to bifurcate the elements of a [felon-in-
                                                                  possession] charge is not reversible error.”), cert. denied, 124
  The district court severed the drug possession charge from      S. Ct. 1474 (2004); United States v. Mangum, 100 F.3d 164,
the other charges, and each group of charges was tried            171 (D.C. Cir. 1996) (“[W]e find that the district court did not
separately to a different jury before the same judge. The         . . . abuse its discretion by deciding not to bifurcate the
district court refused to bifurcate the felon-in-possession       ex-felon element and the other elements of [the
charge into its component elements of gun possession and          felon-in-possession count].”). In an unpublished decision,
felony conviction, and both elements were tried and               United States v. Underwood, Nos. 95-5441/95-5442, 1996
submitted to the jury together.                                   U.S. App. LEXIS 24995 (6th Cir. Sept. 20, 1996), this court,
                                                                  in upholding a district court’s refusal to bifurcate the
  Pennington, who pleaded guilty, testified at Moore’s bank       possession and felony elements of felon-in-possession counts,
robbery trial, admitting that he had robbed the bank and killed   “adopted [the] rule” of the Ninth Circuit in United States v.
the bank employee. He stated that he and Moore had planned        Barker, 1 F.3d 957 (9th Cir. 1993), amended by 20 F.3d 365
the robbery together and shared the proceeds and that Moore       (1994). There, in reversing a district court’s bifurcation of the
had driven the getaway car.                                       two elements of a felon-in-possession count, the Ninth Circuit
                                                                  “h[e]ld that the district court may not bifurcate the single
No. 02-6342                         United States v. Moore         5    6     United States v. Moore                       No. 02-6342

offense of being a felon in possession of a firearm into                ha[d] been convicted of a felony.” The prosecutor is also
multiple proceedings.” Id. at 959.                                      alleged to have made similar references in his closing and
                                                                        rebuttal statements.
  Although Barker appears to announce the rule that a felon-
in-possession count “may not” be bifurcated at all, other                  We doubt that the references were improper. Because the
decisions of the Ninth Circuit limit that principle to cases            stipulation made it unnecessary for the prosecution to prove
involving only a single felon-in-possession charge. See                 an essential element of the crime, the prosecutor properly
United States v. Nguyen, 88 F.3d 812, 817-18 (9th Cir. 1996).           disclosed this fact to the jury. Moreover, the prosecutor’s
We need not reach that issue to decide this case, however,              reference to Moore’s prior felony conviction was no broader
since we conclude that here the district court did not abuse its        than necessary to accomplish its purpose. Indeed, after
discretion in refusing to bifurcate. As the district court              disclosing the stipulation to the jury in his opening remarks,
pointed out, the jury was going to learn about Moore’s felony           the prosecutor told the jury that the “details” of the conviction
conviction apart from the felon-in-possession charge.                   were “not material . . . to this particular case.” Finally, in its
Investigators originally linked Moore to the bank robbery               instructions to the jury, the district court admonished that they
through Jewell. Jewell had purchased the handgun used in the            could “only consider th[e] stipulation for the very limited
bank robbery for Moore because Moore was precluded from                 purpose of determining whether [Moore] had been convicted
doing so as a convicted felon. In developing these facts, the           of a felony offense” and were not to “consider it for any other
prosecution necessarily and inevitably would refer to Moore’s           purpose.”
felony conviction.
                                                                          Considering “the totality of circumstances,” Kincade v.
   Because that conviction was independently relevant to the            Sparkman, 175 F.3d 444, 446 (6th Cir. 1999), these
proof of the bank robbery charges, the district court did not           comments by the prosecutor were not improper, the court
abuse its discretion in refusing to bifurcate the felon-in-             gave a curative instruction, and they did not deny Moore a
possession count. See Fed. R. Evid. 404(b) (“Evidence of                fair trial.
other crimes . . . may . . . be admissible . . . as proof of . . .
intent, preparation, [or] plan . . . .”); cf. United States v. Clark,       2. Detective Duncan, a lead witness for the prosecution,
184 F.3d 858, 868, 866 (D.C. Cir. 1999) (holding that a                 testified that Moore told him during the investigation that he
district court did not abuse its discretion in refusing to sever        met Pennington while the two were in prison together. He
a felon-in-possession charge from other charges where “proof            also testified that “[Moore] informed me that due to previous
of each crime would have been admissible in the separate                felony convictions[,] he was not allowed by law to purchase
trials”).                                                               a handgun[, and] that he had offered Richard Jewell money if
                                                                        Mr. Jewell agreed to purchase the handgun.” As discussed
  B. Moore contends that various references at the trials to            previously, this testimony was relevant to the bank robbery
his prior felony conviction denied him fair trials and that the         charges because the police initially linked Moore to the
district court should have declared mistrials when those                robbery through Jewell. Immediately after those statements,
references were made.                                                   the district court admonished the jury that “[a]ny statements
                                                                        by Mr. Moore or the interviewing officer [Detective Duncan]
  1. In his opening statement, the prosecutor told the jury             . . . of uncharged criminal activities . . . were introduced only
that they would “hear [about] a stipulation . . . that [Moore]          for the fact that those statements were made at that time” and
No. 02-6342                      United States v. Moore           7   8      United States v. Moore                      No. 02-6342

were not to be considered “as any evidence that Mr. Moore is          prior criminal activity were detailed, and whether the
guilty of [the] crimes charged . . . for which he is on trial.”       “statements were . . . of major import” when “compared with
                                                                      the other evidence” against the defendant.).
  The prior relationship between Moore and Pennington was
relevant in proving that the two had a common plan to rob the            3. At the separate trial of the drug possession charge,
bank. The explanation that Moore had Jewell purchase the              prosecution witness deputy sheriff Kenneth Menzie, who was
gun because he was a convicted felon explained to the jury            present during the search of Moore’s girlfriend’s house in
why Moore did not purchase the gun himself.                           which the drugs were discovered, testified that when asked
                                                                      whether “there were any weapons in the house,” Moore
  The situation in the present case is similar to that in United      “replied, [‘]there’s no weapons in the house. I’m a convicted
States v. Harris, where this court refused to reverse a               felon, I can’t have a gun.[’]” The district court immediately
conviction because a prosecution witness made a passing               told the jury: “this testimony you just heard about the
reference to the defendant’s prior arrest. 165 F.3d 1062 (6th         convicted felon, completely disregard that. That had no
Cir. 1999). The witness, a law enforcement officer, testified         business being said at all. It’s irrelevant. It’s completely
that he had located the defendant by finding his address on a         irrelevant to everything. Completely disregard it.” The
previous arrest record. Id. at 1065. This court’s statements          district then denied Moore’s motion for a mistrial based on
in rejecting the challenge to the conviction are equally              that statement. As it explained:
applicable to the present case:
                                                                          In regard to the statement of Officer Menzie that the
  it d[id] not appear that the government intentionally                   defendant had a prior felony conviction, I was just
  elicited the reference to [the defendant’s] prior arrest; the           attempting to answer the Government’s question. I don’t
  government’s line of questioning was reasonable; the                    believe the Government intended for him to give the
  district court gave an immediate and clear limiting                     answer and he didn’t know what he was going to say.
  instruction; the isolated allusion to the prior arrest was              Anyway, there’s no bad faith or intentional conduct on
  not part of a pattern indicative of bad faith; and the                  behalf of the Government. I think it was inadvertence.
  officer’s stray remark constituted only a minuscule part                Everyboy wished it hadn’t happened. I think it’s such a
  of the evidence against [the defendant].                                minor part of the trial. I think my admonition will take
                                                                          care of it.
Id. at 1066; see also United States v. Stotts, 176 F.3d 880,
886-87 (6th Cir. 1999) (holding that a district court properly           Although the reference to Moore’s felony conviction was
denied the defendant’s request for a mistrial following a             improper in the trial of the drug possession charge, the district
witness’s statement that the defendant had a “‘an extensive           court correctly denied a mistrial. The single comment, which
criminal record’” because “the remark was isolated and the            the court immediately admonished the jury to “completely
district court gave an immediate curative instruction”); United       disregard,” did not taint the case so as to deny Moore a fair
States v. Terry, 729 F.2d 1063, 1070 (6th Cir. 1984) (In              trial. Moreover, as in Terry, the statement was not “of major
determining whether improper witness statements “affected             import” when “compared with the other evidence” against the
the substantial rights of the defendant” to warrant a new trial,      defendant. Moore had previously admitted that the drugs
the factors to be considered are whether a “curative                  found in his girlfriend’s house belonged to him.
instruction” was sought or given, whether the references to
No. 02-6342                           United States v. Moore     9    10   United States v. Moore                       No. 02-6342

  C. Moore also challenges the district court’s denial of a           ‘crack’ cocaine,” in violation of 21 U.S.C. § 841(a)(1) (2000).
mistrial following the prosecutor’s questioning of another            The court instructed the jury that if it found Moore guilty of
investigator at the bank robbery trial, Steven Wight. First, the      possession with intent to distribute cocaine base, it “must also
prosecutor asked Wight whether, during his investigation, he          determine the amount of cocaine base involved in this crime,”
had been able to eliminate as a suspect another identified            which would be either “(1) 50 grams or more of a substance
person, who Moore contended was the getaway car driver.               containing a detectable amount of cocaine base,” or “(2) Less
After sustaining Moore’s objection to the question, the court         than 50 grams” of such substance. Compare 21 U.S.C. §
told the jury to “ignore the question . . . like it wasn’t even       841(b)(1)(A)(iii) with 21 U.S.C. § 841(b)(1)(B)(iii).
asked.” Shortly thereafter, the prosecutor asked Wight
whether certain physical evidence taken from the getaway car              The court also instructed the jury on the lesser included
was subjected to forensic analysis. Again, the court sustained        offense of simple possession of cocaine base. It told the jury
Moore’s objection and instructed the jury to disregard the            that if it found Moore not guilty of possession with intent to
question. Moore contends that the nature of the two questions         distribute, it “must go on to consider whether the Government
and the proximity in which they were asked may have left the          has proven the lesser charge of possession of cocaine base.”
jury with the impression that forensic testing exculpated the         The court did not instruct the jury that it had to determine the
person Moore alleged was the driver of the getaway car.               amount of cocaine base if it found Moore guilty of simple
                                                                      possession – presumably because, during the court’s reading
  Here, as in the case of Moore’s objections to other                 of its proposed instructions to counsel, both of them said they
questions or statements discussed above, the district court           “d[id]n’t think” that if the jury “convict[ed] him of possession
properly denied a mistrial. The asking of these two unrelated         . . . they need[ed] to find [the] amount.”
questions, which the district court immediately told the jury
to ignore, did not deny Moore a fair trial.                             The jury found Moore guilty of only simple possession.
                                                                      The prosecutor immediately stated that it would be necessary
  D. In his reply brief, Moore argues for the first time that         that the amount of cocaine base Moore possessed be
there was prosecutorial misconduct when, shortly before trial,        determined because, under the governing statute, the penalty
the prosecution told one of the eyewitnesses to the crime who         for possession of cocaine base was greater if more than five
testified at the trial that he had identified the wrong person        grams were involved. 21 U.S.C. § 844(a). Moore contended
during a pretrial photographic lineup. Moore offers no                that the government had waived this point by previously
explanation or justification for his failure to raise this point in   agreeing that if the jury found only simple possession, the
his forty-page opening brief. We here follow this court’s             amount need not be determined.
normal practice of “declin[ing] to consider issues not raised
in the appellant’s opening brief.” Priddy v. Edelman, 883               The district court, although concluding that the government
F.2d 438, 446 (6th Cir. 1989).                                        probably had waived the issue, determined that any waiver
                                                                      was “correctable because the jury ha[d] not been dismissed,”
                                III                                   “and in looking at the greater picture of justice and the
                                                                      interpretation of the statute, . . . there’s no prejudice to the
  The drug possession charge in the indictment alleged that           defendant by going forward at this time and determining the
Moore “knowingly and intentionally possessed with intent to           amount for simple possession.” The court gave the jury a
distribute 50 grams or more of cocaine base, also known as            supplemental instruction to determine whether the amount
No. 02-6342                      United States v. Moore      11

Moore possessed was five grams or more or less than five
grams. The jury again retired, and five minutes later returned,
finding that the government had proved beyond a reasonable
doubt possession of five grams or more of cocaine base.
   The district court properly gave the jury the supplemental
instruction to determine the amount of crack cocaine Moore
had possessed. The procedure followed in this case to
determine that amount did not prejudice Moore. If the
original instructions had required the jury to make that
finding, the jury would have included in its original verdict
the supplemental finding it subsequently made: that Moore
possessed more than five grams of crack cocaine. The statute
provides a mandatory sentence of at least five years
imprisonment for simple possession of more than five grams
of crack cocaine. Id. The prosecutor thus correctly pointed
out that “[a] determination will have to be made at some time
of the amount for sentencing purposes” and “[w]e can
certainly put on proof as to the amount at sentencing.”
   As Moore recognizes, “[t]he standard of review for a
supplemental charge to a jury under these circumstances is
abuse of discretion.” Appellant’s Br. at 39. A district court
has broad discretion to supervise, control, and determine the
issues the jury is to decide and the manner in which it is to do
so. See United States v. Hiland, 909 F.2d 1114, 1136-37 (8th
Cir. 1990) (stating that a federal district court that gave
“supplemental charge[s]” to correct a “verdict [that] was
ambiguous due to the wording of the instructions” had
“authority to require redeliberation in cases in which there
[was] uncertainty, contingency, or ambiguity regarding the
jury’s verdict”). Considering all the circumstances, the
district court did not abuse its discretion here in concluding
that the government was “entitled to have the amount
determined beyond a reasonable doubt by a jury.”
                       CONCLUSION
  The judgment of the district court is affirmed.
