U.S. v. Moore

• Decision Date: 13 October 2005
• Docket Number: No. 04-2183.,04-2183.
• Citation: 425 F.3d 1061
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Percy E. MOORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

425 F.3d 1061

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

No. 04-2183.

United States Court of Appeals, Seventh Circuit.

Argued November 10, 2004.

Decided October 13, 2005.

COPYRIGHT MATERIAL OMITTED

Joel Hammerman (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Michael J. Phillips (argued), Austgen, Decker & Phillips, Crown Point, IN, for Defendant-Appellant.

Before COFFEY, RIPPLE, and SYKES, Circuit Judges.

COFFEY, Circuit Judge.

On August 28, 2003, Percy E. Moore was convicted in the United States District Court for the Northern District of Illinois of three counts of knowingly and intentionally distributing cocaine hydrochloride (cocaine powder) and cocaine base, in violation of 21 U.S.C. § 841(a)(1). On April 23, 2004, he was sentenced to a term of 175 months. On appeal, Moore argues for reversal of his conviction, alleging that the district court erred by (1) refusing to allow the introduction of Social Security Administration records to confirm Moore's inability to understand the conversations with a confidential informant; (2) admitting expert witness testimony without the foundational testimony required by Rule 702 of the Federal Rules of Evidence; (3) ruling that the government had proved Moore guilty beyond a reasonable doubt in light of inconsistent and contradictory testimony by a confidential informant; and (4) concluding that Moore was competent to be sentenced. We affirm.

I. Background

Percy Moore was charged with three counts of knowingly and intentionally distributing cocaine and cocaine base to Rosa Flemons, a Drug Enforcement Administration ("DEA") confidential informant. While investigating Moore, the DEA sought the assistance of Flemons, who had been convicted three times of drug offenses, once in federal court for conspiracy to distribute cocaine and twice in state court for possession of a controlled substance. In exchange for reducing by half the low end of the federal sentence that she was facing, Flemons agreed to serve as a confidential source for the DEA.

On September 13, 2002, Flemons and her husband, Robert, met with DEA Special Agent Douglas Hopkins and Rockford Police Detective Brian Skaggs in preparation for her first attempt to purchase drugs from Moore. According to the trial transcript, Flemons had never purchased drugs from Moore prior to September 13, 2002.¹ Due to concerns for her safety, Flemons requested that she not be required to wear audio recording equipment during the initial buy, and her supervising agents agreed to her request. According to Flemons and the agents, before Flemons and her husband set off to meet Moore, the agents in charge searched Flemons, her husband, and their car for cash and contraband, and none was found. Agent Hopkins gave Flemons $250 to purchase a quarter ounce of cocaine. At approximately 5:00 p.m., Flemons and her husband drove to Moore's home on the 100 block of South Central in Rockford, Illinois, and found him standing in the front yard with a man and a woman. After the man left, Flemons approached Moore and told him that she wanted to buy a "quarter." According to her testimony, Moore and the unidentified woman went inside the house for a couple of minutes and returned with a plastic bag filled with a white powder. At this time, the woman accompanying Moore handed the plastic bag to Flemons, and Flemons attempted to hand her the $250. The woman pointed to Moore, and Flemons proceeded to hand him the money. Flemons testified that before she left, she asked Moore how much a larger amount of cocaine would cost, and he advised her that a kilo would cost $21,000. She returned to the car and drove to a predetermined location to meet the handling officers. When she arrived, she gave the plastic bag with the white substance to Agent Hopkins, and, once again, he searched her and her husband for money and contraband.

According to Agent Hopkins, he followed the Flemonses until they were near the 100 block of South Central and then transferred surveillance duties to Officer Robert Swank of the Winnebago Sheriff's Department, who was stationed in a school parking lot across the street from Moore's home. According to Officer Swank, he had an unobstructed view of Moore's house. At approximately 5:00 p.m., he observed a small white vehicle with the Flemonses arrive at Moore's home. During his testimony at trial, Officer Swank described the transaction, as depicted by Flemons in her testimony, up until Moore and the unidentified woman returned from inside the house; at that point, he was unable to observe the exchange of money and contraband because it took place behind a vehicle with its hood raised, obstructing his view.

Flemons' next meeting with Moore took place on September 23, 2002. Flemons contacted Moore by telephone, and, during their recorded conversation, she asked Moore if she could stop by to talk. Moore told her to "come on over." Prior to departing for her meeting with Moore, Flemons and her husband were again searched for contraband and money and were given $250 to purchase the narcotics. She wore a concealed recording device to this second meeting, and Officer Swank filmed the encounter. When Flemons arrived at Moore's home, Moore informed her that he was "dry."

Flemons continued to contact Moore by telephone over the next couple of weeks. The conversations were recorded. Flemons testified that during each conversation Moore conveyed to her, using various terms and metaphors, that he presently had no contraband in his possession. Finally, on October 9, 2002, Flemons made another recorded telephone call to Moore, during which Moore told her that he was "all right." Moore then instructed her to come to the thrift store next to his house. Before leaving for the meeting with Moore, the agents searched Flemons, her husband, and their vehicle for cash or contraband and provided Flemons with $800 in cash and a concealed, activated audio recorder. Agent Hopkins again followed the Flemonses until they were near Moore's house, at which point Officer Nick Cunningham of the Winnebago County Sheriff's Department, who was parked across the street from Moore's house, picked up the surveillance. When Flemons arrived at the thrift store, Moore stated that he needed additional time to obtain the contraband. The Flemonses left and traveled to a nearby house to contact Agent Hopkins. Thereafter, they drove to a local fast-food restaurant to eat lunch before returning to the thrift shop. Upon their return, Moore motioned for Flemons to follow him into the back room of the store. According to Flemons, he directed her to a cup located on the floor in the back room. Flemons approached the cup and observed a plastic bag within, which she believed contained an ounce of crack cocaine. Flemons picked up the cup, handed Moore $800 for the drugs, and departed. The video surveillance showed Flemons exiting the store with the cup in her hand. After Flemons left the store, the Flemonses met with their handling agents, gave them the cup containing the cocaine, and submitted to a search of their persons and vehicle. Hopkins placed the cup containing the cocaine into an evidence bag.

Flemons again contacted Moore on October 17, 2002. She told him in a recorded telephone conversation that she wanted "two of them, the hard." Moore advised her to come over. Before leaving for Moore's house, Flemons, her husband, and their car were again searched, and Flemons was given an audio recorder and $1,600 to purchase two ounces of crack cocaine. When Flemons arrived at Moore's house, he had only two small amounts of crack cocaine to sell. Flemons explained that she wanted two ounces, not two "rocks," and Moore told her he needed additional time. The Flemonses left Moore's house and went to meet Agent Hopkins. Approximately twenty to thirty minutes later, Flemons called Moore, and he instructed her to meet him at 210 Howard Avenue in Rockford, Illinois. The Flemonses drove to that location, and Moore led her into a house. Agent Hopkins and Officer Brian Skaggs of the Rockford Police Department followed the Flemonses to the Howard Avenue location and maintained surveillance of the house. A short time later, the officers observed Moore walk out of the residence to a fence surrounding the property and disappear from view. Flemons, who was still inside the house, testified that she observed Moore through the windows walk along the side of the house to the fence where he bent over and retrieved two plastic bags. According to Flemons, Moore brought the two bags back into the house and sold them to her for $1,600. Flemons testified that each bag contained what appeared to be one ounce of crack cocaine. After the transaction was complete, Flemons departed and returned to her handlers. Agent Hopkins took possession of the two plastic bags and the audio recorder and sealed the drugs in a heat sealed evidence bag. The Flemonses were again searched for additional cash or contraband, but none was found.

The substances that Flemons turned over to Agent Hopkins on September 13, October 9, and October 17, 2002, were analyzed by Jennifer Yezek, a DEA forensic chemist. According to Yezek's testimony during trial, the three substances she received were each individually sealed in evidence bags bearing a sticker with the signature of Agent Hopkins. She received the three evidence bags from an unidentified evidence technician. Yezek opened each bag and proceeded to inspect, weigh, and analyze the substances. She performed the following tests on each of the three samples: (1) a cobalt thiocyanate test; (2) a gas chromatography mass spectrometry test; and (3) an infrared spectrometry test. Based on her analysis, Yezek concluded that the substances gathered on September 13, October 9, and October 17, 2002, consisted of 6.6 ounces of cocaine powder, 26.9 grams of cocaine base, and 53.8 grams of cocaine...