U.S. v. Moore

• Decision Date: 25 April 1995
• Docket Number: D,No. 790,790
• Parties: UNITED STATES of America, Appellee, v. Christopher MOORE, Defendant-Appellant. ocket 94-1330.
• Court: U.S. Court of Appeals — Second Circuit

Page 92

54 F.3d 92

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

No. 790, Docket 94-1330.

United States Court of Appeals Second Circuit.

Argued Jan. 10, 1995.

Decided April 25, 1995.

J. Bruce Maffeo, Bernstein & Maffeo, New York City (Michele C. Cacioppo, Bernstein & Maffeo, New York City, of counsel), for defendant-appellant.

Leonard Lato, Asst. U.S. Atty., Brooklyn, NY (Emily Berger, Asst. U.S. Atty., Brooklyn, NY, and Zachary W. Carter, U.S. Atty., Brooklyn, NY, of counsel), for appellee.

Before: KEARSE, McLAUGHLIN, and PARKER, Circuit Judges.

McLAUGHLIN, Circuit Judge:

Christopher Moore was indicted on nine drug-related counts: conspiracy to distribute cocaine base ("crack cocaine"), in violation of 21 U.S.C. Secs. 846, 841(b)(1)(A) (count one); distribution and possession with intent to distribute cocaine base, in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(C), on August 30, 1991 (count two), on September 13, 1991 (count three), and on November 7, 1991 (count four); intentional use and carrying of firearms during and in relation to the drug conspiracy, in violation of 18 U.S.C. Sec. 924(c)(1) (count five (a) through five (k)) (11 subcounts, each involving a different firearm) ("drug-related firearms count"); and possession of firearms with the manufacturer's serial number removed and obliterated, in violation of 18 U.S.C. Secs. 922(k), 924(a)(1) (counts six through nine) ("defaced serial numbers counts").

Following a jury trial, in the United States District for the Eastern District of New York (Charles P. Sifton, Chief Judge ), Moore was found guilty on counts one, two, four, five, seven and nine. He was acquitted of counts three, six and eight. The court sentenced him to a prison term of life on count one, 20 years on counts two and four, five years on counts seven and nine, all of which run concurrently, and to a consecutive term of five years on count five. In addition, Moore received fines of $1 million on counts one, two and four, and $250,000 on counts five, seven and nine, all of which were imposed concurrently.

On appeal, Moore's most compelling argument is that the 100 to 1 sentencing ratio contained in 21 U.S.C. Sec. 841(b) and U.S.S.G. Sec. 2D1.1 (which equates the offense levels of 100 grams of powder cocaine and 1 gram of crack cocaine) violates equal protection. This Court has already held that the sentencing scheme does not violate equal protection under a rational basis review. United States v. Stevens, 19 F.3d 93 (2d Cir.1994). Moore now mounts an equal protection challenge to the sentencing scheme, arguing that Congress acted with a discriminatory purpose.

Moore also appeals his conviction, contending that: (1) the district court abused its discretion by denying his motion for a new trial based on newly discovered evidence that two police officers committed perjury; and (2) there was insufficient evidence to convict on the firearms counts. Moore further appeals his sentence, arguing that: (1) the district court erred in estimating the amount of drugs distributed by Moore; and (2) the district court failed to consider a downward departure. We affirm both the conviction and the sentence.

BACKGROUND

Moore's distribution network

Defendant was the leader of a local crack distribution organization that operated in Brooklyn, and included, among others, Michelle Ruiz, Daniel Gladden ("Raz" or "Noodles"), an individual named Anthony ("Ant"), Bobby Myrick, David Frasier ("Crackhead Dave"), Edward Davis, James Kimball, William Jiminez, and Timothy Cyrus. Moore organized a division of labor within the network, and maintained discipline through violence and intimidation. Some members, e.g., Ruiz, specialized in preparing, cutting up and packaging the crack cocaine. Others, known as "runners," such as Gladden, transferred the processed, ready-for-sale crack cocaine to the most visible members of the organization, the "street sellers," and simultaneously collected the proceeds from them. The street sellers worked two locations near Moore's lingerie store and his barber shop. The organization also used various locations--e.g., 523 Euclid Avenue, 1018 Belmont Avenue, and 474 Pine Street--as "stash houses" to store and process contraband. Additionally,

Moore supplied several network members with guns.

Police Investigation

In August 1991, police officers Robert Schulman and Brian Lavin began surveilling Moore and his organization. From a variety of locations, the officers observed the daily exchange of vials containing a white rock-like substance for money. They saw Moore direct and receive currency from the street dealers. For example, they overheard Moore order sellers "to be more careful of his product" and "keep an eye out for cops." They further noted that, with few exceptions, the only people who entered the lingerie store were members of the organization, the store had no set hours, and it was open as late as 3:00 a.m.

Starting in late August 1991, Schulman and Lavin made a series of arrests and seizures of contraband that would culminate in the arrest of Moore: on August 24, they arrested Jiminez selling crack cocaine near the lingerie store, and seized several vials that contained crack; on August 30, they arrested Davis selling crack cocaine in the lot behind the lingerie store, seized a loaded Smith and Wesson .357 magnum that Davis had dropped, and, after pursuing another seller (who got away) into the basement of the lingerie store, they recovered a police scanner, money and vials containing a white, rock-like substance; on September 13, they seized 12 crack vials, but Cyrus and Myrick escaped; on October 15, they arrested Myrick and Frasier; on November 7, they arrested Cyrus and Kimble; and on February 5, 1992, police officer Vincente DeQueiroz, entered the apartment at 523 Euclid Avenue, arrested Cyrus, Luis Valentine, and Benjamin Colon, and seized 267 vials of crack.

In February 1992, the police executed a number of search warrants. They seized from Ruiz's home two guns (a Davis .380 semiautomatic pistol and a Glock .45-caliber pistol) with the serial numbers obliterated. The biggest seizures occurred across the street from the lingerie store at 1018 Belmont Ave and 474 Pine Street: the police seized an arsenal of weapons; documents upon which were written the words "Ant," "Nud," and "Nudles" (aliases of organization members); and vials containing a white rock-like substance. Shortly thereafter, Moore was arrested and indicted.

Evidence at trial

At trial, two trusted members of Moore's network, cooperating witnesses Ruiz and Gladden, testified against Moore. Ruiz implicated Moore as the head of the distribution network, and described the workings of the organization. Ruiz explained that, in May 1991, Moore taught her how to cut and package crack, and recruited her for his organization. Ruiz testified that she prepared crack two to three times per week, and was paid around $400 per job (about 800 packaged vials). There was testimony that each vial contained approximately .07 grams of crack. Occasionally, she was not paid in money; for example, once Moore paid her with a Davis .380 semi-automatic weapon, which she put in a drawer in her apartment. Ruiz also testified that, while Moore was in her apartment, Gladden brought to Moore a Glock .45 semiautomatic pistol in a brown paper bag. Moore then gave the brown paper bag containing the pistol to Ruiz. Ruiz put the gun in her bureau. Both guns remained there until the police seized them. Ruiz worked full-time for Moore's organization for about one year.

Both Ruiz and Gladden testified as to Moore's violence. When Ruiz initially refused to join the organization, Moore drove her to a Burger King parking lot and "show[ed] who he really is." He dragged her by the hair, slapped her and beat her. Moore's attention similarly extended to other members of his network. For example, later that night, he and Ruiz met David "Crackhead Dave" Frasier at the lingerie store. After excoriating Crackhead Dave for "fuck[ing] up," Moore ordered others to beat him. While Dave was being viciously beaten and Ruiz was crying, Moore warned her that she would suffer the same fate if she did not obey him. Gladden similarly related that Moore ordered dealers who "came up short" to be beaten.

Gladden corroborated much of Ruiz' testimony. Although he worked mostly as a runner, Gladden occasionally doubled as a street Officers Schulman and Lavin similarly testified to an extensive, ongoing crack-distribution network headed by Moore. Their testimony was accompanied by videotapes of various organization members, including Timothy Cyrus, engaged in street sales of crack cocaine. The officers made the videotapes in January, 1992.

seller, where he sold approximately 460 five-dollar vials per day (gross daily sales of around $2,300). Gladden testified that Davis' Smith & Wesson .357 magnum (seized by Schulman and Lavin) was an "organization gun" that Moore had loaned to Gladden previously.

At the close of the case, Moore moved for a judgment of acquittal on counts two, three and five. The court reserved decision, and subsequently denied the motion after the jury rendered its verdict.

Moore was convicted of conspiracy to distribute crack cocaine; distribution and possession with intent to distribute crack cocaine on August 30, 1991 and November 7, 1991; the drug-related firearms count; and two of the defaced firearms counts (the Glock .45 and the Davis .380 semiautomatic pistols seized from Ruiz' apartment).

Post-trial proceedings

Moore first moved to set aside the jury's verdict solely on the drug-related firearms count. The district court denied the motion. Moore then moved, pro se for a new trial (counsel remained in an advisory role), which was denied summarily. Later, Moore moved for a new trial based on allegedly newly discovered evidence that officers Lavin and Schulman perjured themselves. The district...