Moore v. United States

• Court: D.C. Court of Appeals
• Writing for the Court: Shanker, Associate Judge
• Citation: 342 A.3d 1222
• Docket Number: 19-CF-0687
• Decision Date: 04 September 2025
• Parties: Brian E. MOORE, Appellant, v. UNITED STATES, Appellee.

342 A.3d 1222

Brian E. MOORE, Appellant,

v.UNITED STATES, Appellee.

No. 19-CF-0687

District of Columbia Court of Appeals.

Argued En Banc February 29, 2024

Decided September 4, 2025

Appeal from the Superior Court of the District of Columbia (2018-CF3-011411), (Hon. Craig Iscoe, Motions Judge), (Hon. Milton C. Lee, Jr., Trial Judge)

Sean R. Day, College Park, MD, for appellant.

William Collins, Public Defender Service, with whom Samia Fam and Jaclyn S. Frankfurt, Public Defender Service, were on the brief, as amicus curiae in support of appellant.

Chrisellen R. Kolb, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney at the time the brief was filed, and John P. Mannarino and Katherine M. Kelly, Assistant United States Attorneys, were on the brief, for appellee.

Graham E. Phillips, Deputy Solicitor General, with whom Brian L. Schwalb, Attorney General for the District of Columbia, Caroline S. Van Zile, Solicitor General for the District of Columbia, and Ashwin P. Phatak, Principal Deputy Solicitor General, were on the brief, as amicus curiae in support of appellee.

Before Blackburne-Rigsby, Chief Judge, and Beckwith, Easterly, McLeese, Deahl, Howard, and Shanker, Associate Judges.

Concurring opinion by Associate Judge McLeese at page 1243.

Concurring opinion by Associate Judge Deahl at page 1245–46.

Dissenting opinion by Associate Judge Easterly, with whom Beckwith and Howard, Associate Judges, join, at page 1251.

Shanker, Associate Judge:

Appellant Brian E. Moore twice told his attorney, John Harvey, that he was going to kill the District of Columbia Assistant Attorney General (AAG) prosecuting a criminal contempt case against him. First, Mr. Moore stated that he was going to “shoot that bitch,” adding that he in fact owned guns. Then, about two months later, and after Mr. Harvey had warned Mr. Moore that he would take future threats seriously, Mr. Moore repeatedly exclaimed that he would “bust a cap in this bitch,” again referring to the prosecutor. In response, Mr. Harvey sought to withdraw from representing Mr. Moore and, upon a court order, disclosed Mr. Moore’s threats. Mr. Harvey testified before a grand jury, which indicted Mr. Moore; and he testified again at Mr. Moore’s trial, at the conclusion of which a jury convicted Mr. Moore for threatening the AAG and obstructing justice.

On appeal, Mr. Moore argues that Mr. Harvey’s testimony was inadmissible because his statements were protected by the attorney-client privilege. We disagree and affirm the Superior Court’s admission of Mr. Harvey’s testimony. We hold that criminal threats to cause death or substantial bodily harm fall outside the attorney-client privilege.

I. Background

A. Factual Background

The evidence at trial supported the following. Mr. Harvey represented Mr. Moore in a criminal contempt proceeding arising out of the allegation that Mr. Moore violated a civil protective order by contacting his then-wife. On April 12, 2018, during the criminal contempt trial, the AAG asked the court to place Mr. Moore on GPS monitoring with an ankle bracelet. Mr. Harvey had previously persuaded the trial court to remove the GPS monitoring, but the AAG sought reconsideration of that ruling.

The AAG’s renewed attempts to impose GPS monitoring frustrated Mr. Moore. According to Mr. Harvey, his conversation with Mr. Moore went as follows. When they stepped into the hallway during a break in the proceedings, Mr. Moore told Mr. Harvey: “Fuck that bitch. I hate this bitch.” In Mr. Harvey’s experience—consisting of over thirty years as a criminal defense attorney—this kind of anger was normal, and he explained to Mr. Moore that the AAG was just doing her job. Unassuaged, Mr. Moore continued, “Man, fuck that bitch. Fuck that bitch. I’ll shoot that bitch. Fuck that bitch.” “Man, what are you talking about?” Mr. Harvey asked. Mr. Moore clarified, “That’s right, Harvey. I’ll shoot that bitch.” Growing concerned, Mr. Harvey warned, “Man, I’m taking— you starting to make me think you serious.” Mr. Moore reiterated, “God damn right, Harvey. Fuck that bitch. I’ll shoot that bitch.” In case the message was not clear, Mr. Moore added that he in fact owned guns—at least according to Mr. Harvey’s grand-jury testimony, which Mr. Harvey did not repeat at trial.

At this point, Mr. Harvey tried to withdraw from the representation. He told Mr. Moore that he could no longer “be a part of this” and was “going to have to withdraw.” “I don’t give a fuck what you do, Harvey,” answered Mr. Moore. “I don’t give a fuck.”

Mr. Harvey reached out to “Bar Counsel” and asked what he should do. According to Mr. Harvey, he learned that he was permitted to disclose the threats to the court but that the decision was up to him.

Mr. Harvey decided not to disclose Mr. Moore’s statements. He nevertheless asked the court to let him withdraw from the representation. He invoked D.C. R. Pro. Conduct 1.16(b), which permits attorneys to “withdraw from representing a client if,” among other things, “[t]he client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent” or “[t]he client has used the lawyer’s services to perpetrate a crime or fraud.” D.C. R. Pro. Conduct 1.16(b). Mr. Harvey did not invoke Rule 1.6, which permits, but does not require, attorneys to disclose confidential communications when they believe disclosure is reasonably necessary “to prevent a criminal act … likely to result in death or substantial bodily harm absent disclosure.” Id. R. 1.6(c). Mr. Harvey testified that, “at that point, [he] had not reached a decision to reveal the information.” The trial court declined Mr. Harvey’s request to withdraw, because Mr. Harvey refused to explain why he wanted to withdraw and what Mr. Moore had said.

Uncertain how to proceed, Mr. Harvey spoke with Mr. Moore again. Mr. Moore recanted his earlier statements and explained that he “was just bullshitting” and “didn’t mean it.” Mr. Harvey warned that he would believe Mr. Moore if he threatened to shoot someone again. “I won’t say nothing like that again,” Mr. Moore promised. “I was just bullshitting.” Mr. Harvey continued representing Mr. Moore.

The trial paused for about two months due to scheduling issues, and when it resumed on June 29 the AAG raised new concerns about Mr. Moore and once again requested ankle monitoring. The trial court agreed to place Mr. Moore under GPS tracking to ensure his compliance with court orders. Because the proceeding wrapped up late, there was no time to fit Mr. Moore with the ankle bracelet that day. Worse still, because it was a Friday, Mr. Moore would have to be in the District on Monday morning to fit the tracker.

The situation angered Mr. Moore. He had a training seminar for a new job Monday morning in North Carolina, and he feared he would miss the training and lose the job as a result. Upon entering the hallway outside the courtroom, Mr. Moore—according to Mr. Harvey’s testimony—said: “Harvey, if I lose my job, I’m going to bust a cap in this bitch[;] I’m going to bust a cap in this bitch.” “Man, what are you doing?” asked Mr. Harvey. “Man, fuck this bitch. If I lose my job, I’m going to bust a cap in this bitch,” Mr. Moore repeated. He then made a shooting gesture, which a security camera caught. “I told you what I was going to do if you ever said something like that to me again,” warned Mr. Harvey. “Fuck her. Fuck you,” retorted Mr. Moore.

Mr. Harvey approached the court and again asked to withdraw. He told the court that he could no longer represent Mr. Moore and that, if the court ordered him to explain why, he would. The court ordered him to disclose the reason. Mr. Harvey told the court that Mr. Moore had threatened to shoot the AAG. The court directed a marshal to take Mr. Moore into custody. A few days later, despite expressing some skepticism about the sincerity of Mr. Moore’s threats, the court granted Mr. Harvey’s request to withdraw. It granted the request largely because Mr. Harvey had represented that his relationship with Mr. Moore had deteriorated to the point where he could no longer adequately represent Mr. Moore.

B. Procedural Background

The United States impaneled a grand jury to inquire into Mr. Moore’s alleged conduct. The government called Mr. Harvey as a witness. As far as the record reflects, Mr. Harvey did not invoke the attorney-client privilege on Mr. Moore’s behalf, and Mr. Moore had no opportunity to invoke the privilege himself. Mr. Harvey testified about his two hallway conversations with Mr. Moore and the threatening statements. The grand jury charged Mr. Moore with two counts of obstruction of justice, D.C. Code § 22-722(a)(5), and two counts of threatening a public official, D.C. Code § 22-851(c). The two counts for each offense corresponded to the two days on which Mr. Moore made the threats: April 12 and June 29. The case was assigned to a different judge from the one who presided over Mr. Moore’s criminal contempt case.

At a pretrial hearing, Mr. Moore moved to exclude Mr. Harvey’s testimony because the attorney-client privilege rendered the testimony inadmissible. He also denied making any threatening statements and testified that “Mr. Harvey flat[]out lied.” Assuming the truth of Mr. Harvey’s testimony, the trial court concluded that neither Mr. Moore’s April 12 nor June 29 threats were made for the purpose of obtaining legal assistance. The statements were, according to the court, unrelated “to anything except the desire to kill the prosecutor[,] and that is not a legal purpose in the sense of seeking legal advice.” The court emphasized that “the repeated nature of the statements made clear that [they were] not just ill-advised[;] [they were] well thought out.” Moreover, Mr. Harvey’s warning to Mr. Moore that he would disclose the statements if Mr. Moore repeated them was also powerful evidence to the trial court that the statements were not related to a legal purpose. A...