U.S. v. Moore, s. 93-3158

• Decision Date: 15 April 1997
• Docket Number: Nos. 93-3158,96-3046,s. 93-3158
• Citation: 322 U.S. App. D.C. 334,104 F.3d 377
• Parties: , 46 Fed. R. Evid. Serv. 250 UNITED STATES of America, Appellee v. Opio MOORE, Appellant. District of Columbia Circuit
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 377

104 F.3d 377

322 U.S.App.D.C. 334, 46 Fed. R. Evid. Serv. 250

UNITED STATES of America, Appellee v. Opio MOORE, Appellant.

Nos. 93-3158, 96-3046.

United States Court of Appeals,District of Columbia Circuit.

Argued Oct. 8, 1996.

Decided Jan. 7, 1997.

Rehearing Denied April 15, 1997. ^*

Appeals from the United States District Court for the District of Columbia (No. 93cr00038) (No. 93cr00038-01).

Thomas W. Ullrich, appointed by the court, argued the cause and filed the brief for appellant.

Roy W. McLeese, III, Assistant U.S. Attorney, argued the cause for appellee, with whom Eric H. Holder, Jr., U.S. Attorney, John R. Fisher and Steven E. Rindner, Assistant U.S. Attorneys, were on the brief.

Before: SILBERMAN, SENTELLE and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Separate concurring opinion filed by Circuit Judge SILBERMAN.

Separate concurring opinion filed by Circuit Judge TATEL.

SENTELLE, Circuit Judge:

Opio Moore appeals from convictions for (1) unlawful possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); (2) using and carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c); (3) unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1); (4) possession of an unregistered firearm in violation of D.C.Code Ann. § 6-2311(a); and (5) possession of unregistered ammunition in violation of D.C.Code Ann. § 6-2361(3). He argues and the government concedes that the Supreme Court's intervening opinion in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), requires that the conviction under 18 U.S.C. § 924(c) be vacated. We agree. Moore further argues that the district court erred in failing to sever the felon-in-possession charge from the other charges and in failing to sever his trial from that of his co-defendant; that the court abused its discretion in permitting certain expert testimony; that improper statements by the prosecutor denied him a fair trial; that the evidence was insufficient to sustain his convictions; and that the district court erred in denying, without a hearing, his motion pursuant to 28 U.S.C. § 2255 alleging ineffective assistance of counsel. Because none of these arguments establishes prejudicial error, we affirm the remaining convictions.

I. BACKGROUND

On December 30, 1992, at approximately 1:20 a.m., Officer Christopher Sanders of the Metropolitan Police Department ("MPD") observed a Buick containing three individuals moving eastbound on H Street, N.W., at a high rate of speed. The car passed through several red lights without stopping. Officer Sanders pursued the car and signaled for it to stop. When the car came to a stop, Sanders, who was alone on patrol, approached the car and ordered the driver, Opio Moore, to exit the vehicle. Moore exited the car and raised his hands in the air. Sanders noticed a dark object under Moore's armpit. Suspecting that this object was a gun, the officer conducted a protective frisk for weapons. The frisk revealed that Moore was wearing an empty shoulder holster and a bullet-proof vest. At this time Officer Sanders noticed several bullet holes in the front of the car. Additional police officers soon arrived on the scene. The officers removed Daniel Armstead, a rear-seat passenger, from the car and frisked him. He too was wearing a bullet-proof vest. A frisk of the third occupant of the car disclosed nothing.

Moore produced a driver's license and registration. The registration revealed that Moore was the owner of the car. After Moore agreed to a search of the car, officers discovered a loaded 9-millimeter semiautomatic pistol, a loaded .45-caliber semiautomatic pistol, a loaded .38-caliber revolver, a large quantity of cocaine, and a roll of duct tape in the engine compartment. Except for the roll of duct tape, these items were positioned around the car's battery. The duct tape was by the windshield on the driver's side. The 9-millimeter and the .45-caliber handguns each fit the shoulder holster worn by Moore.

The government prosecuted Moore and Armstead in a joint trial. On April 20, 1993, the jury returned its verdict, finding Moore guilty on all counts. It was unable to reach a verdict on the charges against Armstead. The judge declared a mistrial as to Armstead. Moore appeals from his conviction raising numerous points of error which we consider in turn.

II. ANALYSIS

A. Conviction Under 18 U.S.C. § 924(c)

Moore was convicted of "us[ing] or carr[ying] a firearm" during a "drug trafficking crime" in violation of 18 U.S.C. § 924(c). He argues on appeal that this conviction must be reversed because the district court's instructions to the jury on the elements of a section 924(c) offense were contrary to the Supreme Court's subsequent interpretation of that statute in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). The government concedes that Moore's conviction under section 924(c) should be reversed in light of Bailey, but requests that the case be remanded to the district court for resentencing at which time Moore will be subject to a two-level increase under the Sentencing Guidelines for possession of a weapon. We agree that Moore's conviction under section 924(c) must be reversed, and we remand the case for resentencing. See United States v. Fennell, 77 F.3d 510 (D.C.Cir.1996) (per curiam).

B. Sufficiency of the Evidence

Moore further argues that his other convictions must be overturned for lack of sufficient evidence of possession (of either firearms or drugs), a requisite element of each of the charged crimes. In considering a sufficiency of the evidence claim, we review "the evidence de novo, in [the] light most favorable to the Government in order to determine whether a 'rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Moore, 97 F.3d 561, 563-64 (D.C.Cir.1996) (citations omitted). We draw no distinction between direct and circumstantial evidence. United States v. Davis, 562 F.2d 681, 684 (D.C.Cir.1977) (per curiam).

Criminal possession of firearms or drugs may be either actual or constructive. United States v. Raper, 676 F.2d 841, 847 (D.C.Cir.1982). Constructive possession exists when "the defendant knew of, and was in a position to exercise dominion and control over, the contraband." United States v. Byfield, 928 F.2d 1163, 1166 (D.C.Cir.1991). While mere proximity to drugs or guns is not sufficient to establish possession, see United States v. Lucas, 67 F.3d 956, 960 (D.C.Cir.1995), "evidence of some other factor--including connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise--coupled with proximity may" suffice, United States v. Gibbs, 904 F.2d 52, 56 (D.C.Cir.1990).

The evidence in this case was more than sufficient to support the jury's conclusion that Moore was in possession of the drugs and firearms found under the hood of his car. Moore was driving an automobile registered in his name. He was wearing a bullet-proof vest and an empty shoulder holster. There were three handguns concealed in the car, two of which fit into the shoulder holster Moore was wearing. These handguns were found under the hood lying near a bag filled with cocaine. In addition, the officers found a roll of duct tape under the hood. At trial, a government drug expert testified that these facts give rise to the inference that "some individuals are involved in a drug operation."

Of course, the mere fact that three handguns were found in Moore's car is insufficient to establish possession. However, the presence of the guns in a car owned and operated by Moore coupled with the fact that two of the guns fit the shoulder holster worn by Moore suggests that he knew of and exercised control over the guns. The fact that Moore was driving a bullet-riddled car and wearing a bullet-proof vest strengthens the inference. Moore's connection to the guns suggests possession of the drugs found next to the guns and in Moore's car. See United States v. Dunn, 846 F.2d 761, 764 (D.C.Cir.1988) (holding that a defendant's connection to a "tool of the narcotic trade"--in that case a gun--suggests that the defendant exercised control over drugs found in the same locale). In sum, the evidence of possession, though circumstantial, was strong.

Moore complains that his conviction was obtained without "smoking gun" evidence. This claim is frivolous. We have long held that the government need not produce a "smoking gun" to obtain a conviction. See United States v. Poston, 902 F.2d 90, 94 n. 4 (D.C.Cir.1990) (holding that "[t]here is no requirement of any direct evidence against the defendant"); United States v. Torres, 901 F.2d 205, 224 (2nd Cir.) (holding that a "smoking gun" is unnecessary to sustain a conviction against a sufficiency of the evidence claim), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990); United States v. Kaplan, 832 F.2d 676, 679 (1st Cir.1987) ("For us to sustain the jury's determinations we need not find a 'smoking gun.' "), cert. denied, 485 U.S. 907, 108 S.Ct. 1080, 99 L.Ed.2d 239 (1988). Indeed, the doctrine of constructive possession necessarily belies Moore's implicit claim that he could be convicted only if caught "red-handed." We therefore reject Moore's claim that the evidence was insufficient to convict.

C. Severance

1. Felon-in-possession Charge

Moore next argues that the district court erred in failing to sever his charge of possession of a firearm by a convicted felon from the other counts of his indictment. Rule 14 of the Federal Rules of Criminal Procedure provides that a district court "may" order that counts be tried separately "[i]f it appears that a defendant ... is prejudiced by joinder of offenses ... for trial together...."...