769 F.3d 264 (4th Cir. 2014), 13-4446, United States v. Moore

Docket Nº:13-4446
Citation:769 F.3d 264
Opinion Judge:WILKINSON, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. COREY A. MOORE, Defendant - Appellant
Attorney:Philip Urofsky, SHEARMAN & STERLING LLP, Washington, D.C., for Appellant. James I. Pearce, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Mark D. Lanpher, Bryan Dayton, SHEARMAN & STERLING LLP, Washington, D.C., for Appellant. Mythili Raman, Acting Assistant Attorney General...
Judge Panel:Before WILKINSON, GREGORY, and KEENAN, Circuit Judges. Judge Wilkinson wrote the opinion, in which Judge Gregory and Judge Keenan joined.
Case Date:October 10, 2014
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 264

769 F.3d 264 (4th Cir. 2014)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

COREY A. MOORE, Defendant - Appellant

No. 13-4446

United States Court of Appeals, Fourth Circuit

October 10, 2014

Argued September 16, 2014

Page 265

Appeal from the United States District Court for the District of Maryland, at Greenbelt. (8:10-cr-00648-AW-1). Alexander Williams, Jr., District Judge.

ARGUED:

Philip Urofsky, SHEARMAN & STERLING LLP, Washington, D.C., for Appellant.

James I. Pearce, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

ON BRIEF:

Mark D. Lanpher, Bryan Dayton, SHEARMAN & STERLING LLP, Washington, D.C., for Appellant.

Mythili Raman, Acting Assistant Attorney General, Denis J. McInerney, Deputy Assistant Attorney General, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, Sujit Raman, Chief of Appeals, Arun G. Rao, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

Before WILKINSON, GREGORY, and KEENAN, Circuit Judges. Judge Wilkinson wrote the opinion, in which Judge Gregory and Judge Keenan joined.

OPINION

Page 266

WILKINSON, Circuit Judge:

After a five-day bench trial, the district court found defendant Corey Moore guilty of, among other things, violating 18 U.S.C. § 924(c) by possessing a firearm " in furtherance of" a crime of drug trafficking. On appeal, Moore challenges the denial of a motion to suppress evidence and the sufficiency of the evidence on the § 924(c) count. As to the Fourth Amendment claim, the motion to suppress should have been raised prior to trial. It was not so raised, and, as the district court found, it was thereby waived. We also find that there is ample evidence to support finding a nexus between the drug trafficking and the firearms under § 924(c) and therefore affirm the conviction.

I.

When reviewing the facts of this case, we take them in the light most favorable to the government as the prevailing party below. United States v. Black, 707 F.3d 531, 534 (4th Cir. 2013); United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002). Police officer Hubley was driving the streets of Takoma Park, Maryland, on September 25, 2010, when he observed Corey Moore walking down Sherman Avenue carrying a green bottle. Suspicious that the bottle might be " a bottle of Heineken beer or the like," the officer turned around. J.A. 121. He radioed that he was going to conduct a stop and beckoned to Moore. Moore began to approach the police cruiser but turned and fled as the officer stepped out of the vehicle.

Officer Hubley pursued and eventually apprehended Moore. In the course of that pursuit, both the officer and two bystanders saw Moore run behind a dumpster and toss up a package. Though Moore and the officer continued running, that package was later recovered and found to contain a half kilogram of cocaine with a street value of over $10,000.

Two days later, officers responded to an attempted break-in at 118 Sherman Avenue in Takoma Park. Upon investigation, the officers found a broken window in the door to the basement apartment. The landlord informed the officers that the basement apartment was rented to " Corey Moore." Based on the attempted burglary and Moore's arrest two days earlier with a half kilogram of cocaine, the officers obtained a search warrant for the apartment.1 In the apartment, the officers found 2.8 kilograms of phencyclidine (PCP) under the kitchen sink in a large pickle jar, a digital scale disguised as a CD case that tested positive for cocaine residue, open plastic bags, a bag of bottles of a sort used for drug distribution, approximately $45,000 in cash, and two handguns in the bedroom -- an unloaded .44 caliber Desert Eagle pistol and a loaded .38 caliber Smith & Wesson revolver.2

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A federal grand jury indicted Moore on four counts: (1) possession with intent to distribute a substance containing a detectable amount of cocaine in violation of 21 U.S.C. § 841(a)(1); (2) possession with intent to distribute one kilogram or more of PCP in violation of 21 U.S.C. § 841(a)(1); (3) possession of firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c); and (4) possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1).

The district court held a five-day bench trial, during which it heard from twenty government witnesses and six defense witnesses, including the defendant. Over four days into the trial and upon returning from a recess immediately before closing...

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