Moore v. United States

Citation285 A.3d 228
Decision Date17 November 2022
Docket Number19-CF-0687
Parties Brian E. MOORE, Appellant, v. UNITED STATES, Appellee.
CourtCourt of Appeals of Columbia District

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

Katherine M. Kelly, Assistant United States Attorney, with whom Michael R. Sherwin, Acting United States Attorney, and Elizabeth Trosman and John P. Mannarino, Assistant United States Attorneys, were on the brief, for appellee.

Before Beckwith and Easterly, Associate Judges, and Thompson, Senior Judge.*

Opinion by Senior Judge Thompson, dissenting in part, at page 253.

Easterly, Associate Judge:

Attorney John Harvey was appointed by the trial court to represent Brian Moore in a contempt proceeding after Mr. Moore allegedly violated an order prohibiting him from contacting his then-wife. But Mr. Harvey subsequently became a witness against Mr. Moore: Mr. Harvey was called by the United States government in a separate criminal case to testify about two private in-the-hallway-outside-the-courtroom mid-trial conversations during which Mr. Moore made hostile remarks about the District of Columbia Assistant Attorney General (AAG) who had been assigned to prosecute his contempt case. Based on Mr. Harvey's inculpatory testimony, Mr. Moore was sentenced to an aggregate of eight years in federal prison for threatening a public official and obstructing justice (two counts each).

Mr. Moore challenges his convictions on multiple grounds. We address only two: his argument that the evidence supporting his convictions was legally insufficient and his argument that the admission at his trial of Mr. Harvey's testimony violated Mr. Moore's evidentiary attorney-client privilege. Although we reject Mr. Moore's sufficiency claims, we hold, based on the record in this case, that the trial court erred in ruling that Mr. Harvey's conversations with Mr. Moore were not privileged and thus his testimony about these conversations was admissible against Mr. Moore at trial. Further, because we conclude this erroneous evidentiary ruling was not harmless, we vacate Mr. Moore's convictions.

I. Sufficiency
A. Trial Facts and Procedural History

At Mr. Moore's May 2019 jury trial for threatening a public official and obstructing justice, the government called three witnesses: the District of Columbia AAG who had prosecuted Mr. Moore for contempt, a Deputy United States Marshal assigned to investigate the threats against the AAG, and Mr. Harvey. Because Mr. Harvey was the only witness who actually heard what Mr. Moore said, the government's case rested on his testimony.

Mr. Harvey, a longtime member of the Superior Court's Criminal Justice Act panel,1 explained that he heard Mr. Moore's statements because he was Mr. Moore's court-appointed lawyer in the contempt case. Mr. Harvey testified that the statements in question were made on two occasions during Mr. Moore's 2018 contempt trial, which spanned several months so that Mr. Moore, who was not detained and lived in North Carolina, would not miss too many consecutive days of work. On both occasions, the statements were made after the AAG sought to alter Mr. Moore's conditions of release.

Prior to the first incident on April 12, 2018, the AAG asked the court to reverse its order discontinuing GPS monitoring of Mr. Moore via an ankle bracelet. Mr. Harvey and Mr. Moore met in the hallway outside the courtroom to discuss this development, or more particularly, Mr. Moore's feelings about this development. Mr. Moore was "very agitated" and began by saying things like "[f]uck that bitch. I hate this bitch," referring to the AAG. Responding to Mr. Moore, Mr. Harvey explained that the AAG was doing her job as a prosecutor, and it was "just silly on his part to be angry." This only further angered Mr. Moore, who not only repeated "fuck that bitch" but also added "I'll shoot that bitch." When Mr. Harvey said, "Man, what are you talking about?" Mr. Moore replied, "That's right, Harvey. I'll shoot that bitch." Mr. Harvey told Mr. Moore he was "starting to ... think [Mr. Moore was] serious," prompting Mr. Moore to say, "God damn right, Harvey. Fuck that bitch. I'll shoot that bitch." Mr. Harvey then told Mr. Moore he would have to withdraw from representing him and left to call Bar Counsel.

Mr. Harvey testified that he called Bar Counsel to "find out what [his] options were." Mr. Harvey explained that he was aware that, within the scope of his representation of Mr. Moore on contempt charges, he could not disclose Mr. Moore's "secrets" about past criminal activity, but Mr. Harvey's understanding was that Mr. Moore's threats to commit future criminal activity fell outside that representation.2 Mr. Harvey also noted that under Rule 1.6 of the District of Columbia's Rules of Professional Conduct, he was authorized to "reveal client confidences and secrets[ ] to the extent reasonably necessary ... to prevent" a client from engaging in a criminal act that he as the attorney "reasonably believe[d] [wa]s likely to result in death or substantial bodily harm absent disclosure." See D.C. R. Prof. Conduct 1.6(c)(1). Mr. Harvey testified that Bar Counsel advised him that the decision whether to disclose such statements under this rule was left to his discretion.

Relying on a different rule, D.C. R. Prof. Conduct 1.16 (regarding declining or terminating representation), Mr. Harvey decided to ask the court if he could withdraw because of an unspecified "ethical problem." He did not indicate which subsection of Rule 1.16 he wished to rely upon. When the judge asked if Mr. Harvey reasonably believed that Mr. Moore had used or was attempting to use his services to perpetrate a crime or a fraud, alluding to D.C. R. Prof. Conduct 1.16(b)(1) and (2), Mr. Harvey told the court he had "concerns." But Mr. Harvey later told the judge that his "reason for wishing to withdraw ha[d] nothing to do with [Mr. Moore] requesting [Mr. Harvey] to do anything." His relationship with Mr. Moore had become "toxic" by this point and Mr. Harvey just "wanted to get out of the case." The trial court refused to allow him to withdraw based on the information he provided. In the meantime, Mr. Moore informed Mr. Harvey that he had just been "bullshitting" and reassured him, "I didn't mean it. I didn't mean it."3

Mr. Harvey testified that he told Mr. Moore that he would continue to represent him but instructed him, "You will never, ever use this kind of language with me about anybody because, from this point forward, I'm going to believe you. So if you decide you want to go shoot somebody, you need to keep that to yourself and don't make me a part of it."4 Mr. Moore responded: "All right, Harvey. I'm not going—I won't say nothing like that again. I was just bullshitting." Mr. Harvey and Mr. Moore then entered the courtroom and the trial resumed.

Mr. Moore failed to appear at his next scheduled trial date in June 2018. Mr. Harvey explained to the court that Mr. Moore was training for a new job as a crane operator and had to attend a certain number of classes within a period of time. The judge continued the trial until June 29, 2018, and informed Mr. Harvey that if Mr. Moore did not appear on that date, she would issue a bench warrant for Mr. Moore's arrest. On June 29, a Friday, Mr. Moore returned to court and the AAG again asked the court to either detain him or order him to resume wearing an ankle bracelet. The court granted the AAG's request to put Mr. Moore back on GPS monitoring. Because it was nearing 5 p.m., it was too late for Mr. Moore to get an ankle bracelet that day; he had to return to the courthouse on Monday morning. Mr. Harvey testified that Mr. Moore was "pissed off" about this development because it meant that he would have to miss job training scheduled for Monday. Mr. Harvey successfully advised Mr. Moore to keep his anger in check while they were before the judge, but once they were out in the hallway, Mr. Moore expressed his feelings to Mr. Harvey. Mr. Harvey explained that Mr. Moore "wasn't hollering and screaming, but you could see [from] the expression on his face that he was ... mad." According to Mr. Harvey, they had the following exchange:

Mr. Moore: [I]f I lose my job, I'm going to bust a cap in this bitch, I'm going to bust a cap in this bitch.
Mr. Harvey: Man, what are you doing?
Mr. Moore: Man, fuck this bitch. If I lose my job, I'm going to bust a cap in this bitch [making a hand gesture simulating a gun].
Mr. Harvey: I told you what I was going to do if you ever said something like that to me again.5
Mr. Moore: Fuck her. Fuck you.

Mr. Harvey testified he had "no idea what this man was going to do." Without further discussion, Mr. Harvey went back into the courtroom and renewed his motion to withdraw. He also told the court that he would reveal Mr. Moore's statements to him if the court ordered him to, which the court did. After hearing Mr. Harvey's account of Mr. Moore's comments, the court immediately ordered Mr. Moore to be detained and subsequently granted Mr. Harvey's withdrawal motion.6

In addition to this testimony from Mr. Harvey and its two other witnesses, the government introduced into evidence silent surveillance footage from June 29, 2018, capturing the second of the two conversations in the courthouse corridor when Mr. Harvey claimed Mr. Moore had threatened the AAG, as well as still photographs taken from the video footage. Mr. Harvey's grand jury testimony was admitted into evidence in the defense case. Mr. Moore did not testify. The jury quickly convicted Mr. Moore on all counts of threatening a public official and obstructing justice.

B. Analysis

On appeal, Mr. Moore argues that the government failed to prove that he had the requisite mens rea to support either of his convictions. Although he briefed this argument after his evidentiary claim, we address it first for two reasons: (1) "the Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply...

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