U.S. v. Moore
| Decision Date | 14 April 2011 |
| Docket Number | No. 08–4292.,08–4292. |
| Parties | UNITED STATES of America, Plaintiff–Appellee,v.Anthony E. MOORE, also known as Arab, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
George A. Norwood (argued), Attorney, Office of the United States Attorney, Benton, IL, for Plaintiff—Appellee.Brian P. Mullins (argued), Attorney, Federal Defender Services of Eastern Wisconsin, Incorporated, Milwaukee, WI, for Defendant—Appellant.Before EASTERBROOK, Chief Judge, WILLIAMS, Circuit Judge, and PALLMEYER, District Judge.*WILLIAMS, Circuit Judge.
Anthony E. Moore was convicted of conspiring to distribute drugs and of being a felon in possession of a firearm. He now appeals his conviction, asserting that the district court made four reversible errors during his trial.
Moore first argues that the court should have ordered a mistrial based on a question by the prosecutor regarding a gang. However, the prosecutor's question did not implicate Moore as a gang member and did not deprive him of a fair trial. Moore's next argument is that the court erred procedurally and substantively in admitting evidence of Moore's drug transactions that occurred before the start of the charged conspiracy. We find that although the court should have explained its reasons for admission, the prior drug transaction evidence was admissible to prove an element of the charged crime and went towards Moore's intent and knowledge.
Next, Moore argues that the court should not have admitted evidence that alluded to an involvement in dog fighting. This evidence, however, also contained an admission by Moore and its probative value outweighed any danger of unfair prejudice. Moore also asserts that the court should have ordered a mistrial after a juror encountered an associate of Moore's during a lunch break and discussed the experience with her fellow jurors afterward. But the court's voir dire of the jury following the juror's incident was proper, the jury was not compromised, and the juror did not discuss the trial inappropriately. Finally, Moore argues that even if no single trial error merits reversal, the cumulative effect of the errors requires reversal. However, the cumulative error doctrine does not apply because we do not find that Moore identified more than one error. Therefore, we affirm his conviction.1
On May 8, 2008, after a four-day trial, a jury convicted Anthony Moore of conspiring to distribute 50 grams or more of cocaine base from October 2002 to March 7, 2007, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The jury found him not guilty of violating 18 U.S.C. § 924(c)(1)(A) and (B), possession of a short-barreled shotgun in furtherance of a drug-trafficking crime. Moore was sentenced to life imprisonment on the conspiracy charge and 120 months on the firearm charge, to run concurrently. Additional facts will be presented below where relevant.
A. Mistrial Motion Based on Prosecutor's Question Properly Denied
Moore argues that the prosecutor engaged in prosecutorial misconduct by asking a question regarding a gang, and that the court erred by not ordering a mistrial as a result. This argument fails because the prosecutor's question did not constitute prosecutorial misconduct.
We review a district court's decision on motions requesting a mistrial for an abuse of discretion. United States v. Lane, 591 F.3d 921, 927 (7th Cir.2010). In evaluating claims of prosecutorial misconduct, we employ a two-step process. We first look at the comment in isolation to determine if it was improper. United States v. Hale, 448 F.3d 971, 986 (7th Cir.2006). If we find that it was improper, we must then examine the comment in light of the record as a whole to determine whether the comment deprived the defendant of a fair trial. Id. The ultimate question is whether the comment “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id.
Here, the government had witnesses who could testify that Moore bragged about being a high-ranking member of the Gangster Disciples street gang (“GDs”), and that he used his status to recruit them into buying drugs from and selling drugs with him. Moore's trial was held before a court that had a general policy of disallowing gang affiliation testimony. This policy acknowledges “the substantial risk of unfair prejudice attached to gang affiliation evidence”, and our court's directive of “careful consideration by district courts in determining the admissibility of gang membership and gang activity evidence.” United States v. Irvin, 87 F.3d 860, 864 (7th Cir.1996). The prosecutor had significant experience appearing before the trial court, and was well aware of its general policy of excluding evidence that could raise an inference of gang membership and activity.
During a pre-trial motion hearing, the prosecutor explained that he wanted to elicit testimony about Moore recruiting co-conspirators in his distribution of drugs, but that he would “limit it to the best of my ability”. He stated that, The court reiterated that Moore's gang affiliation was inadmissible, but that “depending upon what a witness says in response to a question either on direct or cross examination, the Court may instruct the jury regarding [the issue of gangs] if it comes in.”
Devon Smith testified on the second day of trial. He was not one of the witnesses who could testify to being recruited by Moore. Instead, he was scheduled to testify about buying drugs from Moore, selling drugs with him, watching him sell drugs to other people, Moore's control over alleged crack houses, and Moore's possession of guns. During Smith's direct examination, the following exchange took place between the prosecutor and Smith:
Q [Prosecutor]. Now, a few days before you got picked up on this case, did you have a conversation with the defendant on 18th Street?
A [Smith]. Yes, I did.
* * *
Q. And what was he talking about?
A. He talking about he tired of these BDs down there, and they were going to have to start paying dues.
Q. Okay. He was tired of GDs down here?
A. Yes.
Q. What are GDs?
A. That's another gang.
Q. Okay.
[Moore's Attorney]: Objection, Your Honor. May we approach?
THE COURT: No. The objection—
[Moore's Attorney]: We had had a discussion.
THE COURT: I realize that.
Q [Prosecutor]. Let me ask you this way: Was there another group of people?
A [Smith]. Yes, there was.
Q. And did you have a conversation with the defendant?
A. Yes.
Q. And without going into—did he talk about paying dues?
A. Yes, he did.
Q. What did he say about that?
A. He was talking about the GDs wanted to start paying.
Q. Without saying any organizations—
A. He said people going to pay dues. He wanted them to pay for the drugs that the other gang, the other group of people was bringing in. And then us, you know what I'm saying, the ones that was in town and everything, making us all start paying dues.
Q. He was wanting to make other people who were selling drugs to pay dues to him?
At the next break in trial, and outside the presence of the jury, the following exchange took place between the court and the parties:
[Moore's Attorney]: Now that we're outside the scope of the jury, I request a mistrial.
THE COURT: I figured you would, and I'm denying the motion.
Moore's claim of prosecutorial misconduct is based on the question, “What are GDs?”. The district court did not abuse its discretion in refusing to declare a mistrial based on this question because, when viewed in isolation, the question was not improper. And, in any event, it did not deprive Moore of a fair trial.
As the prosecutor stated during his oral argument before our court, he should not have asked the question, “What are GDs?”. It necessitated testimony regarding a gang, and any response to the question would not have aided the jury in assessing the case against Moore. However, though it was ill-advised, the question was not improper in isolation because it did not implicate Moore's alleged personal affiliation with the GDs, or with any gang. It is possible that Moore, as an individual, would want and demand “dues” from the “GDs” without having any gang affiliation himself. Even if the question called for testimony about a gang generally, it does not mean that the question necessitated testimony regarding Moore's membership within or leadership of the GDs.2
Even if we had found that the question was improper in isolation, it would still not necessitate reversal because it did not deprive Moore of a fair trial. Indeed, any inference of an alleged gang affiliation played a minor role in Moore's trial. First, no witness directly testified to Moore's membership within, or leadership of, the GDs.3 Second, witness testimony regarding gangs hardly appears in the record, perhaps because the prosecutor went to great lengths to avoid such testimony. For example, the prosecutor...
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