United States v. Moore, No. 17-14370
| Decision Date | 31 March 2020 |
| Docket Number | No. 17-14370 |
| Parties | UNITED STATES of America, Plaintiff - Appellee, v. Bernard MOORE, Derrick Miller, Defendants - Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Marty Fulgueira Elfenbein, Nicole D. Mariani, Andrea G. Hoffman, Tonya R. Long, Assistant U.S. Attorney, Emily M. Smachetti, U.S. Attorney Service-Southern District of Florida, U.S. Attorney Service-SFL, Miami, FL, for Plaintiff-Appellee.
Sheryl Joyce Lowenthal, Law Offices of Sheryl Lowenthal, Miami, FL, for Defendant-Appellant Bernard Moore.
Thomas Damian Sclafani, Sclafani & Associates, PA, Robert William Stickney, Robert W. Stickney, PA, Fort Lauderdale, FL, for Defendant-Appellant Derrick N. Miller.
Before ROSENBAUM and TJOFLAT, Circuit Judges, and PAULEY.*
Appellants Bernard Moore and Derrick Miller (together, "Appellants") appeal their convictions for narcotics trafficking and firearms possession. Appellants argue, among other things, that: (1) the district court erred in allowing them to be shackled during trial; (2) the district court mishandled a jury note; and (3) their 18 U.S.C § 922(g) convictions should be vacated under Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019). After careful review of the record and briefs, and with the benefit of oral argument, we affirm Appellants’ convictions and sentences.1
The Drug Enforcement Agency ("DEA") and Federal Bureau of Investigation ("FBI") investigated Michael Fonseca and Michael Lewis for suspected narcotics trafficking in an effort to identify their supplier. The investigation focused on an apartment in Miami, Florida that law enforcement believed was a stash house (the "Stash House.") On December 2, 2015, a confidential informant conducted a controlled buy. The confidential informant met Fonseca in his car. After telling the confidential informant that he would retrieve the heroin "from my dog," Fonseca went to the Stash House, where he met Miller, and both went inside. When they emerged from the Stash House, Fonseca returned to the confidential informant’s car and handed him a heroin sample. Law enforcement recorded the conversations between Fonseca and the confidential informant, and, using surveillance footage later recovered from the Stash House, was able to determine that Fonseca had subsequently walked to the Stash House before returning to the confidential informant’s car to conduct the transaction.
On January 8, 2016, DEA agents observed Moore escorting Lewis into the Stash House and then saw Lewis leave holding what appeared to be a bag. When DEA agents stopped and searched Lewis’s vehicle, they recovered heroin from two bags on the vehicle’s floor.
On January 10, 2016, DEA agents executed a search warrant on the Stash House. Once inside, DEA agents discovered a security camera system recording Appellants’ comings and goings. Fortuitously for law enforcement, Appellants preserved the surveillance footage depicting them entering and leaving the Stash House, locking and unlocking the door, carrying firearms, and patrolling the perimeter. The surveillance footage showed Appellants inside the Stash House the day before the search. Law enforcement recovered large amounts of narcotics, including marijuana, hydrocodone, ethylone, heroin, powder cocaine, and crack cocaine, as well as narcotics paraphernalia. During the search, DEA agents also seized Miller’s identification cards and a loaded .357 caliber pistol with Moore’s DNA on the trigger. Additionally, DEA agents recovered two firearms from vehicles parked outside the Stash House: a .45 caliber pistol similar to one depicted on surveillance footage of Miller on January 6, 2016 and a 9mm pistol with Miller’s fingerprints on its magazine.
On November 2, 2016, Appellants were arrested. Law enforcement searched Miller’s residence and discovered narcotics, drug paraphernalia, and a firearm.
The government charged Appellants with conspiracy to distribute a controlled substance from December 2, 2015 through January 10, 2016 in violation of 21 U.S.C. § 846 (Count 1); possession with the intent to distribute a controlled substance on January 10, 2016 in violation of 21 U.S.C. § 841(a)(1) (Count 3); being felons in possession of firearms on January 10, 2016 in violation of 18 U.S.C. § 922(g) (Count 4); and possession of firearms in furtherance of drug trafficking on January 10, 2016 in violation of 18 U.S.C. § 924(c) (Count 5). The government also charged Moore with possession with intent to distribute a controlled substance on November 2, 2016 in violation of 21 U.S.C. § 841(a)(1) (Count 8). Finally, the government charged Miller with possession with intent to distribute a controlled substance on December 2, 2015 in violation of 21 U.S.C. § 841(a)(1) (Count 2); possession with intent to distribute a controlled substance on November 2, 2016 in violation of 21 U.S.C. § 841(a)(1) (Count 6); and being a felon in possession of a firearm on November 2, 2016 in violation of 18 U.S.C. § 922(g) (Count 7).
Prior to trial, Appellants stipulated that they had prior felony convictions. During trial, Appellants were shackled. The trial record is bereft of any explanation for this security measure. In fact, the only reference to shackling at trial occurred when Miller asked permission to examine a witness himself and, outside the jury’s presence, the district court acknowledged a logistical issue because he was shackled. The district court resolved the matter by permitting Miller to question the witness while seated at counsel table with the assistance of his attorney.
During their deliberations, the jury sent a number of notes seeking guidance from the district court. Jury Note No. 6 on the second day of deliberations posed the following request:
In response to that jury note, Miller’s counsel moved for a mistrial, which the district court denied. The government proposed that the district court advise the jurors that there was no danger and that they should resume their deliberations. Appellants’ counsel requested that the district court interview each juror who expressed safety concerns.
After conferring with counsel, the district court spoke with the jury foreperson:
Thereafter, the district court engaged in the following colloquy with a juror in camera :
The district court thanked the juror and asked the court security officer to inquire whether any other juror wished to speak with the court. A second juror came forward and the following in camera colloquy ensued:
No other jurors came forward to speak with the district court. The district court then summarized the two in camera juror interviews for counse...
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