U.S. v. Moore, s. 83-1278
| Decision Date | 08 June 1982 |
| Docket Number | No. 83-1279,No. 82-00227,83-1279,No. 83-1278,Nos. 83-1278,s. 83-1278,82-00227,83-1278 |
| Citation | 235 U.S. App. D.C. 381,732 F.2d 983 |
| Parties | , 15 Fed. R. Evid. Serv. 1151 UNITED STATES of America v. Ronald R. MOORE, Appellant. UNITED STATES of America v. Perseval BRIGHT, Appellant. . Argued 1 Nov. 1983. Decided 27 April 1984. Appeals from the United States District Court for the District of Columbia (Criminal). William J. Garber, Washington, D.C. (appointed by this Court), for appellant in Richard Stern, Washington, D.C. (appointed by this Court), for appellant in Bertrand Shipley Thomas, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, Michael W. Farrell and Judith Hetherton, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee. Before TAMM, WILKEY and MIKVA, Circuit Judges. Opinion for the Court filed by Circuit Judge WILKEY. Dissenting opinion filed by Circuit Judge MIKVA. WILKEY, Circuit Judge: The primary issue presented by this case is whether the admission of certain "bad acts" testimony was proper. Because we find that the trial judge's carefully considered admission of this testimony conformed fully with both the Federal Rules of Evidence and our prior cases, we affirm. I. FACTS In the spring of 1982 appellant Ronald Moore met Robin Smith in a shopping mall. The two went out to dinner that night. The two agreed that Smith would leave her motel and move in with Moore. Smith lived with Moore for a period of several weeks that spring. Because of her relationship with Moore, she was able to observe almost all facets of his home life. As she later testified at trial, that included witnessing several drug sales. 1 Smith testified that Moore's friend Perceval Bright was also involved in some of those drug transactions, principally as Moore's supplier of cocaine. 2 Smith ultimately became disenchanted with Moore, and decided to profit from her special knowledge by turning paid police informant. She contacted the police, and offered to set up for an arrest a drug dealer who "was dealing large quantities of mari |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (Criminal No. 82-00227).
William J. Garber, Washington, D.C. (appointed by this Court), for appellant in No. 83-1278.
Richard Stern, Washington, D.C. (appointed by this Court), for appellant in No. 83-1279.
Bertrand Shipley Thomas, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, Michael W. Farrell and Judith Hetherton, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.
Before TAMM, WILKEY and MIKVA, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKEY.
The primary issue presented by this case is whether the admission of certain "bad acts" testimony was proper. Because we find that the trial judge's carefully considered admission of this testimony conformed fully with both the Federal Rules of Evidence and our prior cases, we affirm.
In the spring of 1982 appellant Ronald Moore met Robin Smith in a shopping mall. The two went out to dinner that night. The two agreed that Smith would leave her motel and move in with Moore.
Smith lived with Moore for a period of several weeks that spring. Because of her relationship with Moore, she was able to observe almost all facets of his home life. As she later testified at trial, that included witnessing several drug sales. 1 Smith testified that Moore's friend Perceval Bright was also involved in some of those drug transactions, principally as Moore's supplier of cocaine. 2
Smith ultimately became disenchanted with Moore, and decided to profit from her special knowledge by turning paid police informant. She contacted the police, and offered to set up for an arrest a drug dealer who "was dealing large quantities of marijuana and had access to large quantities of coke." 3 The police apparently responded avidly to this offer, and a deal was soon struck.
The arrest was set for 8 June 1982. During the course of that day, Smith had three telephone conversations with Moore. In the first telephone call, Moore confirmed to Smith that he could obtain the drugs, using the code words "Herbie" for marijuana and "white girl" for cocaine:
In a subsequent telephone call, Smith and Moore established that the price would be $6,000 for four ounces of cocaine, and approximately $355 to $365 per pound for 30 pounds of marijuana.
Following several more telephone conversations between Moore and Smith, Moore and Bright ultimately arrived at Smith's hotel room. The subsequent conversations in the room were tape-recorded through a hidden microphone. At the hotel room, Smith introduced the two appellants to Metropolitan Police Detective Ronnie Hairston, who told them he was a drug dealer from Virginia. After Hairston explained that his Virginia suppliers had been dry, Moore and Hairston quickly began discussing the quality of the drugs Moore was offering to sell. The two then reached apparent agreement on $360 a pound as the price for the marijuana, then entered a dispute as to the price of the cocaine. Hairston insisted that the price was "four ounces for six," 6 but Moore and Bright claimed that price had not been set. 7
Moore, Bright and Hairston then resumed discussions:
Faced with the price increase, Hairston canceled the marijuana deal, but agreed to purchase the cocaine. 9 The three then began a discussion of logistics:
Bright then insisted on inspecting the money Hairston had brought with him. After a brief inspection, he called Moore over to inspect the bills also:
* * *
* * *
I don't want to do no business with that turkey. 11
Moore and Hairston then left the hotel room without concluding the drug deal. Before leaving, Moore apparently indicated to Hairston that they didn't want to do business because the money was "marked." 12 After they left, Hairston reexamined the money and concluded that it had been dusted for fingerprints. 13
Even though no deal was concluded, the government proceeded to arrest Bright and Moore as they left the scene in Bright's truck. A gun and very small amounts of marijuana and hashish were retrieved from Bright's truck. Both their homes were searched, and a somewhat larger amount of marijuana was recovered from Moore's apartment. No drugs were recovered from Bright's home. The two men were subsequently charged with conspiracy to sell cocaine, and a variety of other offenses related to the possession allegations. 14
Before trial, the government informed the court and the parties that it intended to employ testimony from Smith detailing the appellant's prior drug dealings in order to "provide the setting" for the crime. 15 The attorneys for Moore and Bright objected strenuously. 16 The government established that the testimony would be used to prove intent, 17 and to rebut an entrapment defense which Moore proposed to raise. 18 The judge duly noted the objections, but ruled that the bad acts testimony was admissible. 19 Smith then testified at trial at some length about the defendants' prior drug dealings, 20 before proceeding to testimony involving events on the day of the aborted drug sale. 21
Both defendants then presented defenses which directly attacked the issue of whether they had the necessary intent to engage in drug dealings. Moore acknowledged that the transaction in the hotel room resembled--and was intended to resemble--a bona fide drug sale, but claimed it was in fact merely a scam devised by Smith to dupe the would-be purchaser. According to Moore, he believed the deal would lead only to Smith's departing with the would-be purchaser's money, part of which she would then use to repay her debts to Moore. 22 Bright, on the other hand, claimed that he knew nothing about any drugs. As his attorney argued to the jury, Bright was along simply as a good Samaritan who had given Moore a ride, and when "things [in the hotel room] just didn't add up to what he had been told ... the only thing he wanted to do was get out of there." 23
At the close of trial, the trial judge again held that the bad acts testimony would be considered admissible. 24 The attorneys for Moore and Bright chose not to seek a limiting instruction forbidding the jury to use the bad acts testimony for impermissible purposes. 25 As their counsel candidly explained at oral argument, the decision not to seek the limiting instruction was a tactical choice made in order to avoid reinforcing the damaging impact of the bad acts testimony. 26 The jury then convicted the defendants on the conspiracy charge, and acquitted on all others. 27 This appeal followed.
A court considering whether to admit bad acts testimony must undertake a two-part analysis. First, the court must inquire whether the testimony is relevant under the...
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