U.S. v. Moore

• Decision Date: 19 July 1991
• Docket Number: No. 89-2669,89-2669
• Parties: 33 Fed. R. Evid. Serv. 1345 UNITED STATES of America, Plaintiff-Appellee, v. Michael MOORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1508

936 F.2d 1508

33 Fed. R. Evid. Serv. 1345

UNITED STATES of America, Plaintiff-Appellee, v. Michael MOORE, Defendant-Appellant.

No. 89-2669.

United States Court of Appeals, Seventh Circuit.

Argued May 18, 1990.

Decided July 19, 1991.

Patrick J. King, Jr., Office of the U.S. Atty., Crim. Div. and Barry R. Elden, Asst. U.S. Atty., Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Martin S. Agran, Agran & Agran, Chicago, Ill., for defendant-appellant.

Before COFFEY, RIPPLE and MANION, Circuit Judges.

COFFEY, Circuit Judge.

Michael Moore appeals his convictions for robbery of a postal employee, through the use of a dangerous weapon, thus putting the postal employee's life in jeopardy, in violation of 18 U.S.C. Sec. 2114 and for possession of a firearm after conviction for an offense carrying a sentence greater than one year in violation of 18 U.S.C. Sec. 922(g). We affirm.

I. FACTS

Michael Moore and Ronald Miles were subjects of a two-count indictment charging each of them with one count of robbery of a postal employee, that put the employee's life in jeopardy by use of a dangerous weapon, in violation of 18 U.S.C. Sec. 2114, and one count of possession of a firearm after conviction of an offense with a sentence greater than one year in violation of 18 U.S.C. Sec. 922(g). ¹ Moore proceeded to trial, was found guilty on both counts and sentenced to twenty years imprisonment for the postal armed robbery offense and twenty-five years confinement for the firearms offense, with the sentences to run concurrently with one another and concurrently with a prison sentence previously imposed in an unrelated case.

Diane Brinkmeyer, an employee of E & S Liquor Store, Dixmoor, Illinois, testified at trial that Michael Moore and Ronald Miles entered the liquor store at approximately 10:00 a.m. on May 9, 1987, and purchased various items including three hats, a bottle of orange juice and a bottle of Martell (cognac). Brinkmeyer's contact with the defendant Moore was extensive as she described a lengthy exchange with Moore in which Moore hassled her wanting a discount for the hats. Brinkmeyer also stated that after Moore and Miles left, she had a further encounter with Moore when Moore returned to obtain a lottery ticket. In this conversation Moore apologized to Brinkmeyer for his earlier conduct. Brinkmeyer described Moore and Miles as black males and stated that Miles was taller and more darkly complected than Moore. She stated Miles had a scruffy beard while Moore wore a beige colored sweater and a tight crocheted hat. Brinkmeyer identified Moore in court as the individual who wore the beige colored sweater and tight crocheted hat at the liquor store.

At about 11:00 a.m. the same morning, the Bedford Park Post Office, Bedford Park, Illinois was the scene of an armed robbery. Flora Gaitor, who was working as a window clerk, testified that two men entered the Post Office and the taller of the two approached Gaitor's window and asked to purchase a book of stamps. While Gaitor made change for the purchase, the taller man grabbed her arm and displayed a gun. The other man went over the counter while the armed man told Gaitor to open the drawers of two unoccupied clerk windows. After she explained that she did not have keys to open these drawers, the armed man ordered her to go into the back room. At trial Gaitor testified that the armed man was a tall black man wearing brown clothes and a cap. Gaitor further testified that the other man involved in the Post Office armed robbery was shorter and was also black, had a lighter complexion, and was wearing a cap under a nylon stocking he wore over his head. Following the armed robbery, Gaitor's cash drawer was audited and found to be short $110.81 in cash and stamps. Several money orders were also missing including one with a serial number ending with the numbers 026. A postal customer, Thomas Leonchik, arrived at the Post Office just as the two men were leaving. Leonchik described them as two black males, one taller than the other and stated that the taller man had a mustache and a little beard. Leonchik stated that the two drove away in a blue or gray Buick.

About 12:00 noon, following the Post Office armed robbery, Miles and Moore returned to the E & S Liquor Store in

Dixmoor and made another purchase of Martell and orange juice. On a third occasion at about 2:30 p.m., the two returned to the liquor store. Store employee Diane Brinkmeyer testified that after Moore and Miles entered the store, Moore stood near the door and Miles walked to the back of the store. When Moore began jiggling his keys, Miles approached the counter and grabbed Brinkmeyer, pointed a gun at her and told her to freeze. Miles told Brinkmeyer to open her cash register and he removed the money from it. Another witness, a man who lived on the block near the liquor store, testified that he observed two men enter a gray Buick and drive away from the liquor outlet.

After receiving a report of the liquor store armed robbery and a description of the getaway car, police pursued the automobile. During a high speed chase Moore lost control of the car and exited after it crashed into a house. Miles, armed, exited the automobile and attempted to flee but was apprehended a short distance from the car and arrested. Moore got out of the car, ran a short distance, was ordered to stop, and was taken into custody.

Initially, both robbers Moore and Miles were transported to the Calumet Park Police Department and then transferred to the Dixmoor Police Department. While at the Dixmoor Police Department, Miles gave a written statement to Dixmoor Police Detective Michael Morgan. In his statement Miles stated that he did not meet Moore until after the postal armed robbery had occurred, further that Moore did not know that Miles was going to rob the liquor store and he forced Moore to drive the car in the escape following the liquor store armed robbery.

Moore owned the getaway car. Following the arrest of Moore and Miles, the police seized the getaway vehicle, searched it and recovered cash, stamps, postal money orders including one with serial number 026, a Martell bottle, a bottle of orange juice, ² a nylon stocking and hats. At trial Flora Gaitor, the Post Office employee, identified the nylon stocking taken from the car as being similar to the one used in the robbery and the gun seized from Miles at the time of his arrest as similar to the stocking and gun that were used in the armed robbery. Gaitor also testified that the stamps taken from the car were the same type that she was selling in the Post Office at the time of the armed robbery. In addition, Gaitor had money orders in her drawer to sell and one had a serial number ending with 026, corresponding to the one found in Moore's car. At trial Diane Brinkmeyer identified various items seized from Moore's automobile as being like the items she sold to Moore and Miles. The half pint bottle of Martell (cognac) was identified as the size and brand Brinkmeyer had sold Moore and Miles at noon. The bottle of orange juice was the same type and size purchased from the liquor store and reflected the same price as that the liquor store was charging for orange juice on the date of the robbery. In addition, hats found in the automobile were of the type she sold to the defendants in their visits to the liquor store on May 9, prior to the armed robbery. In addition, Brinkmeyer identified the gun recovered from Miles as being similar to the one used in the liquor store hold-up.

Following the arrest of Moore and Miles a line-up was conducted at the Dixmoor, Illinois Police Station on May 9, 1987. Flora Gaitor, who witnessed the crime, participated as a witness to the line-up and stated that one of the men in the (6 person) line-up looked like one of the robbers but that she could not be sure. The man whom Gaitor tentatively identified at the line-up was Ronald Miles. Postal customer Thomas Leonchik went to the Dixmoor Police Station shortly after the crime. While there he identified the car in police custody that had been seized from the defendants as the one the robbers use to flee the crime scene. At the same time, Leonchik selected two pictures from a set of (6) photographs of the participants who appeared in the line-up that Gaitor had earlier viewed as portraying the taller of the two men he observed leaving the Post Office. He pointed out that a photograph of Miles in an array of six looked like the person he saw flee from the Post Office, but that the beard in Miles' photographs was insufficiently heavy.

II. ISSUES PRESENTED

(1) Did the trial court commit an abuse of discretion in failing to ask jurors questions concerning the particular subject matters the defendant Moore requested; (2) Was the trial court's action in excluding the contents of Miles' post-arrest statement as inadmissible hearsay and the refusal of Moore's attempt to cross-examine a police detective concerning the contents of this statement proper; (3) Did the district court err in admitting in evidence Moore's palm print obtained by a postal inspector and a latent palm print of Moore that was lifted from a money order stolen in the postal armed robbery; (4) Did the trial court commit error in admitting into evidence the pre-trial tentative identifications of Miles at the Bedford Park Post Office made by postal clerk, Flora Gaitor and customer, Thomas Leonchik; (5) Was the trial judge's action in excluding evidence concerning the reasons for Moore's release from custody shortly after his arrest proper; (6) Did the district court properly exclude from evidence a memorandum an Assistant United States Attorney authored on the question of Moore's pre-trial release; (7) Did the trial court err when it conducted a conference in which Miles asserted his constitutional right against self-incrimination outside of the presence of the jury and Moore; (8)...