651 F.3d 30 (D.C. Cir. 2011), 05-3050, United States v. Moore

Docket Nº:05-3050, 05-3051, 05-3052, 05-3053, 05-3054, 05-3064.
Citation:651 F.3d 30
Opinion Judge:PER CURIAM:
Party Name:UNITED STATES of America, Appellee v. Rodney L. MOORE, also known as Rasoo, Appellant.
Attorney:Stephen C. Leckar, appointed by the court, John Kenneth Zwerling, Neil H. Jaffee, Assistant Federal Public Defender, and Charles A. Murray argued the cause for appellants. With them on the briefs were A.J. Kramer, Federal Public Defender, and Deborah A. Persico, appointed by the court. Leslie Ann...
Judge Panel:Before: SENTELLE, Chief Judge, and ROGERS [1] and KAVANAUGH, [2] Circuit Judges. Opinion concurring in part in Part I filed by Circuit Judge ROGERS. ROGERS, Circuit Judge, concurring in part in Part I of the per curiam opinion:
Case Date:July 29, 2011
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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651 F.3d 30 (D.C. Cir. 2011)

UNITED STATES of America, Appellee

v.

Rodney L. MOORE, also known as Rasoo, Appellant.

Nos. 05-3050, 05-3051, 05-3052, 05-3053, 05-3054, 05-3064.

United States Court of Appeals, District of Columbia Circuit.

July 29, 2011

Argued March 24, 2011.

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Appeals from the United States District Court for the District of Columbia (No. 1:00-cr-00157).

Stephen C. Leckar, appointed by the court, John Kenneth Zwerling, Neil H. Jaffee, Assistant Federal Public Defender, and Charles A. Murray argued the cause for appellants. With them on the briefs were A.J. Kramer, Federal Public Defender, and Deborah A. Persico, appointed by the court.

Leslie Ann Gerardo, Assistant U.S. Attorney, U.S. Attorney's Office, argued the cause for appellee. With her on the brief were Ronald Machen, Jr., U.S. Attorney, Roy W. McLeese III and Elizabeth Trosman, Assistant U.S. Attorneys, and Angela M. Miller, Special Assistant U.S. Attorney.

Before: SENTELLE, Chief Judge, and ROGERS 1 and KAVANAUGH, 2 Circuit Judges.

Opinion concurring in part in Part I filed by Circuit Judge ROGERS.

OPINION

PER CURIAM:

TABLE OF CONTENTS
I. BATSON 40
A. Batson Framework 40
B. Strike-by-Strike Analysis 42
II. STUN BELTS 44
III. ANONYMOUS JURY 48
IV. PROSECUTORIAL MISCONDUCT 50
A. Opening and Closing Arguments 50
B. Overview Witness 54
C. Cumulative Error 61
V. RULE 404(b) EVIDENCE 63
VI. BRADY 64
VII. STATUTE OF LIMITATIONS 65
VIII. JOINDER 68
IX. CONFRONTATION CLAUSE 69
X. JENCKS ACT 74
XI. RELIGIOUS CONVERSION TESTIMONY 75
XII. TESTIMONY OF STEVE GRAHAM 76
XIII. DESTRUCTION OF EVIDENCE 78
XIV. MULTIPLE CONSPIRACIES INSTRUCTIONS 78
XV. MOORE'S CONVICTION FOR CONTINUING CRIMINAL ENTERPRISE 80
XVI. MERGER OF MOORE'S MURDER CONVICTIONS 81
XVII. EXCLUSION OF ANTOINE WARD CONFESSION 81
XVIII. SMITH'S CONVICTION FOR MURDER OF ANTHONY DENT 83
XIX. SMITH'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM 85
XX. CONSPIRACY WITHDRAWAL INSTRUCTION 89
XXI. AIDING AND ABETTING INSTRUCTION 90
XXII. SEVERANCE 94
XXIII. HANDY'S NEW TRIAL MOTIONS 96
A. Sufficiency of Evidence 97
B. Brady 98
XXIV. CONCLUSION 102

Page 39 Six defendants appeal from judgments of conviction in the district court on multiple charges, including drug conspiracy, RICO conspiracy, continuing criminal enterprise, murder, and other related charges in violation of federal and District of Columbia laws. They assert a wide variety of alleged errors covering, among other things, evidentiary issues, both as to admission and sufficiency; conduct of the trial; prosecutorial misconduct; and jury instructions. Upon review, we conclude that most of the asserted errors either were not erroneous or were harmless. As to one category of issue involving alleged violations of the Confrontation Clause of the Constitution, a Supreme Court decision intervening between the trial and our consideration of the case compels us to remand convictions of some drug charges (Counts 126-138) for further consideration by the district court in light of the Supreme Court's opinion. We also remand for further proceedings a claim of ineffective assistance of counsel raised by appellant Smith (Counts 4 and 5). We vacate one murder conviction as to appellant Moore that, as the parties agree, merges with another conviction (Count 32). * * * According to the indictment in the district court and the evidence of the United States at trial, during the late 1980s and 1990s, appellants Rodney Moore, Kevin Gray, John Raynor, Calvin Smith, Timothy Handy, and Lionel Nunn, along with others, some of whom were also indicted but tried separately, conspired to conduct and did conduct an ongoing drug distribution business in Washington, D.C. In the course of conducting that business, various of the co-conspirators committed a wide-ranging course of violence including 31 murders. The United States obtained a 158-count superseding indictment upon which the defendants were tried by a jury. After a trial lasting over ten months, the jury returned verdicts of guilty on several of the charges, including the drug conspiracy, 21 U.S.C. § 846, the RICO conspiracy, 18 U.S.C. § 1962(d), continuing criminal enterprise (Moore and Gray), 21 U.S.C. § 848(a)-(b), murder, D.C.Code § 22-2401, -3202; D.C.Code § 22-2101; 18 U.S.C. § 1959(a)(1); 21 U.S.C. § 848(e)(1)(A); 18 U.S.C. § 1512, assault with intent to murder (Moore and Gray), D.C.Code § 22-503, -3202, illegal use of a Page 40 firearm (Moore, Gray, Raynor, Handy, and Nunn), 18 U.S.C. § 924(c), distribution of cocaine base and heroin (Gray), 21 U.S.C. § 841(a)(1), possession with intent to distribute heroin (Raynor), id., and tampering with a witness (Handy), 18 U.S.C. § 1512(b). The trial court entered judgment imposing substantial criminal sentences generally amounting to terms in excess of life imprisonment from which the defendants now appeal. Further details of the facts, evidence, and proceedings will be set forth as necessary for the discussion of the issues raised by appellants. I.3 The Constitution's equal protection guarantee bars prosecutors from using peremptory challenges to strike prospective jurors on the basis of race. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In this case, although 9 of the 12 jurors were African-American, appellants argue that the prosecution unconstitutionally used its peremptory challenges to remove prospective jurors who were African-American. The district court rejected appellants' challenge. We affirm the district court's decision. A Batson challenge proceeds in three steps: First, the defendant must establish " a prima facie case of discriminatory jury selection by the totality of the relevant facts about a prosecutor's conduct during the defendant's own trial." Second, " the State [must] come forward with a neutral explanation for challenging jurors within an arguably targeted class." Third, the " trial court then will have the duty to determine if the defendant has established purposeful discrimination." Miller-El v. Dretke, 545 U.S. 231, 239, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (alterations and internal quotation marks omitted). In the district court, appellants argued that the prosecution's use of 34 peremptory strikes to remove African-Americans from the venire for regular jurors established a prima facie case of discrimination. Accepting that the prima facie hurdle was cleared, the district court required the prosecution to explain each of its peremptory challenges of African-Americans. After the prosecution provided those explanations, the district court required further argument from both sides as part of Batson 's final stage. The court allowed the defense counsel to dispute the validity of each government explanation and required the prosecution to individually respond to the defense's argument on each disputed strike. The court actively engaged in the entire process, consulting its notes and correcting and questioning counsel. At the conclusion of the multi-hour hearing, the district court ruled that appellants had not " established purposeful discrimination." Miller-El, 545 U.S. at 239, 125 S.Ct. 2317; see also Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (" [T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." ). In this court, appellants dispute the district court's conclusion that there was no Batson violation. A. Appellants' challenge to the district court's Batson decision faces a demanding standard. " On appeal, a trial court's ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous." Page 41 Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). The Supreme Court has emphasized that the " trial court has a pivotal role in evaluating Batson claims." Id. The Court has explained that the demeanor of the prosecutor exercising a challenged strike is often " the best evidence of discriminatory intent." Id. (alterations omitted). The district court, unlike this court, observed the prosecutor's demeanor firsthand. Further, when the asserted basis for a strike is a prospective juror's behavior in court, the trial court will have observed and evaluated that juror's demeanor as well. See id. For those reasons, the Supreme Court has stated that " in the absence of exceptional circumstances, we would defer to the trial court" in resolving a Batson claim. Id. (alterations omitted); see also Hernandez v. New York, 500 U.S. 352, 365-66, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion). Appellants argue that we should reject the district court's findings because the court itself did not individually discuss each challenged strike on the record. Batson 's third step requires trial courts to closely analyze the prosecutor's proffered reason for each disputed strike in light of all the relevant circumstances. See Miller-El, 545 U.S. at 241-42, 251-52, 125 S.Ct. 2317. The record here demonstrates that the district court appropriately exercised its Batson responsibilities. The district court required three rounds of argument on each strike of an African-American juror: a prosecution opening in which the government individually justified each strike; a defense response disputing those government explanations; and a prosecution reply to every defense argument. Throughout...

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