United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2001
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Jonair Tyreece Moore, also known as *
HighC, also known as Spade, *
*
Appellant. *
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Submitted: December 17, 2010
Filed: April 6, 2011
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Before WOLLMAN, BRIGHT, and COLLOTON, Circuit Judges.
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WOLLMAN, Circuit Judge.
A jury found Jonair Tyreece Moore guilty of conspiracy to distribute fifty
grams or more of cocaine base (crack cocaine) and a detectable amount of cocaine, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). He appeals his conviction, arguing
that the prosecutor engaged in misconduct, that the district court1 erred in admitting
certain evidence, and that he was denied effective assistance of counsel. We affirm.
1
The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska.
I. Background
On July 22, 2009, a grand jury returned a one-count indictment charging Moore
with conspiracy to distribute crack cocaine and cocaine “[b]etween on or about June
1, 2005, and on or about March 31, 2007.” Moore entered a plea of not guilty, and the
case proceeded to trial.
Fourteen witnesses testified regarding Moore’s involvement in the conspiracy
and his drug distribution activities. The witnesses had been convicted of federal
crimes—mostly drug offenses—and testified pursuant to plea or post-plea agreements.
Each agreement included a cooperation provision, stating that the United States would
consider requesting a sentence reduction if the individual fully cooperated with law
enforcement officials. The witnesses testified that, all told, Moore distributed more
than 500 grams of crack cocaine and more than 700 grams of cocaine.
Christopher Evans, a cooperating witness, testified that he purchased one ounce
of crack cocaine from Moore in March or April 2008, approximately one year after
the time period alleged in the indictment. Moore objected to the admission of the
evidence on relevancy grounds, arguing that it was beyond the scope of the
indictment. The district court asked whether the government had provided notice of
Evans’s testimony and whether defense counsel had adequate time to prepare its
response. After considering counsel’s response that the government had provided the
information well before the trial and had supplemented it thereafter, the district court
overruled the objection.
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The government also introduced video recordings of Moore rapping.2 In the
first set of recordings, Moore, using his pseudonym Spade, engaged in battle rap with
another artist. Taking turns, they traded insults and boasted about their lifestyles and
rapping skills. The second set of recordings took place outside of what appears to be
an apartment complex, and showed Moore with his friends, taking turns rapping.
Moore’s lyrics were about drugs, guns, women, and sexuality. At one point he
rapped, “The police all know me and I have narcotics. . . . I brought the rack3 even
though cocaine prices are up.”
Moore claimed that the government had failed to prove its case, in part because
there were no drugs seized from the conspiracy and there was no evidence of phone
calls between Moore and the cooperating witnesses. He argued that the cooperating
witnesses gave false information to the authorities in order to garner sentence
reductions. To support Moore’s theory and to impeach the witnesses’ credibility,
defense counsel vigorously cross-examined the witnesses on their cooperation
2
In an article published in 1992, William Safire explained the etymology of the
word “rap” in American language:
However rap entered American usage, it was widely adopted in black
English by the 1960’s. Eldridge Cleaver wrote in a 1965 letter, “In
point of fact he is funny and very glib, and I dig rapping with him.”
Clarence Major, in his 1970 Dictionary of Afro-American Slang,
defined rap as both verb and noun: “to hold conversation; a long,
impressive monologue.” Within a decade, the noun was used
attributively in rap music, labeling the rhythmic rhyming lines set to an
insistent beat.
William Safire, On Language; The Rap on Hip Hop, N.Y. Times Magazine, Nov. 8,
1992, at 19.
3
Moore testified that “rack” is slang for $1,000.
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agreements, their criminal records, and the inconsistencies between their testimony
and the reports prepared by law enforcement officials.
Testifying in behalf of his defense, Moore explained that rapping is his art and
that his provocative lyrics were not literally true but were meant to draw a response
from the crowd. Moore testified that the witnesses were lying, that he had not met
most of them, and that he was never involved in the distribution of crack cocaine or
cocaine.
The jury returned a guilty verdict, and Moore was sentenced to 292 months’
imprisonment.
II. Discussion
A. Alleged Prosecutorial Misconduct
Moore contends that his conviction cannot stand because the government
participated in a sprawling conspiracy to secure his indictment. He alleges that the
prosecutor either conspired with several law enforcement officers to falsify reports or
that the prosecutor fabricated parts of the reports herself. As purported proof of the
falsification, Moore cites cross-examination testimony in which eight witnesses were
confronted with the reports written by law enforcement officials and asked to explain
the inconsistencies between their testimony and the reports.
We do not agree that the inconsistencies prove that the reports were falsified.
See United States v. West, 612 F.3d 993, 996 (8th Cir. 2010) (“Merely inconsistent
statements do not establish use of false testimony.”). In some cases, the witnesses
stated that the reports were incorrect. In others, they either stated that they did not
remember making the statement to the investigator or acknowledged that their trial
testimony was different from the information they had provided to the investigator.
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The cross-examination responses served to discredit the witnesses, and defense
counsel argued that the inconsistent statements showed the witnesses’ willingness to
lie under oath in exchange for possible sentence reductions. Without any evidence
that the reports were falsified, Moore’s claim of prosecutorial misconduct is
unfounded. Our review of the record satisfies us that the prosecutor did not engage
in improper conduct and that Moore’s argument for reversal is without merit.
B. Admission of Christopher Evans’s Testimony
Moore next argues that the district court erred in admitting Evans’s testimony.
Although at trial he argued that the evidence was beyond the scope of the indictment
and thus irrelevant, Moore now contends that the evidence was inadmissible under
Federal Rule of Evidence 404(b). The government has maintained that the transaction
was part of the conspiracy and has acknowledged that there was a variance between
the indictment date and the proof at trial.
A variance exists when the evidence “proves facts that are materially different
from those alleged in the indictment.” United States v. Buchanan, 574 F.3d 554, 564
(8th Cir. 2009) (internal quotations and citation omitted). Although a variance affects
the defendant’s Sixth Amendment right to adequate notice, the defendant suffers no
prejudice if the indictment has fully and fairly apprised him of the charges. Id. at 565.
“When the date of the offense is not an element of the charge, we have held on many
occasions that a variance between the indictment date and the proof at trial is not fatal
so long as the acts charged were committed within the statute of limitations period,
and prior to the return date of the indictment.” United States v. Stuckey, 220 F.3d
976, 982 (8th Cir. 2000) (gathering cases). We review de novo whether a variance
exists and whether it prejudiced the defendant. Buchanan, 574 F.3d at 565.
The indictment alleged that Moore engaged in a conspiracy to distribute crack
cocaine and cocaine “[b]etween on or about June 1, 2005, and on or about March 31,
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2007.” For conviction, the government was required to prove that there was an
agreement to distribute the drugs, that Moore knew of the agreement, and that he
intentionally joined the agreement. See United States v. Chavez-Alvarez, 594 F.3d
1062, 1066 (8th Cir. 2010) (stating the elements of drug distribution conspiracy). The
alleged time frame of the conspiracy was not an element of the crime. See United
States v. Ghant, 339 F.3d 660, 662 (8th Cir. 2003) (“Time is not a material element
of a conspiracy charge.”) (quoting United States v. Turner, 975 F.2d 490, 494 (8th Cir.
1992)). Accordingly, the government was not required to prove the dates of the
conspiracy, and—even though Evans’s crack cocaine purchase occurred
approximately one year after the dates alleged—the acts were committed within the
statute of limitations period and prior to the return date of the indictment. Despite the
difference between the time period alleged in the indictment and the proof at trial, we
conclude that the indictment fully and fairly apprised Moore of the charge against
him.4 Moore thus suffered no prejudice and any variance constituted harmless error.
The district court did not abuse its discretion in admitting Evans’s testimony.
See United States v. Mitchell, 613 F.3d 862, 866 (8th Cir. 2010) (standard of review).
Rule 404(b) does not apply to Evans’s testimony because it was not evidence of
Moore’s other crimes, wrongs, or acts. Rather, it constituted evidence plainly relevant
to the existence of and Moore’s participation in the conspiracy charged, and thus was
properly admitted. See United States v. Stephenson, 924 F.2d 753, 763-64 (8th Cir.
1991).
C. Admission of Recordings of Moore Rapping
Moore also contends that the district court erred in admitting the recordings of
him rapping. He argues that the recordings were improper character evidence that
should have been excluded under Rule 404(b). The government argues that the
4
Moore also had actual notice of the evidence well before trial.
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recordings were admissible without limitation because Moore’s lyrics constituted
evidence of the charged conspiracy. Because Moore failed to object at trial, we
review the admission of the recordings for plain error. United States v. Faulkner, No.
10-1271, 2011 WL 668057, at *6 (8th Cir. Feb. 25, 2011). We reverse “only if there
was an error that was plain and that affected [Moore’s] substantial rights and if it
seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
Id. (quoting United States v. Olano, 507 U.S. 725, 732 (1993) (internal quotation
marks omitted)).
Even if the recordings constituted evidence of prior bad acts, they were
nonetheless admissible under Rule 404(b). Moore maintained that he was not
involved in a drug conspiracy, and he testified that he never bought or sold crack
cocaine or cocaine. The recordings were relevant to prove that he knew cocaine
prices, used drug code words, and sold drugs to supplement his income. Accordingly,
the evidence was admissible to show his knowledge of drug distribution and his
motive for engaging in it. See Fed. R. Evid. 404(b).
Additionally, Moore contends that the recordings should have been excluded
as unduly prejudicial under Federal Rule of Evidence 403, which provides that even
relevant evidence “may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice.” Some of Moore’s lyrics tended to show that he
knew cocaine prices, used drug code words, and sold drugs to supplement his income.
Countering the probative value of that evidence, however, was the danger of unfair
prejudice flowing from the lyrics used by Moore and the other rappers, which were
replete with vulgar, inflammatory, prejudicial language, most of which was irrelevant
to whether Moore was involved in a drug distribution conspiracy. Cf. United States
v. Gamory, No. 09-13929, 2011 WL 832554, at *8 (11th Cir. Mar. 11, 2011) (“The
lyrics presented a substantial danger of unfair prejudice because they contained
violence, profanity, sex, promiscuity, and misogyny and could reasonably be
understood as promoting a violent and unlawful lifestyle.”) Altogether, the recordings
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were some twenty minutes in length, and they were shown to the jury without
limitation or a limiting instruction. See Fed. R. Evid. 105.
Because there was no Rule 403 objection, we review for plain error. See Olano,
507 U.S. at 734 (“‘Plain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’”).
Assuming for purposes of discussion that the recordings should not have been
admitted, we conclude that, in light of the overwhelming evidence against him,
Moore has failed to persuade us that the recordings affected the outcome of the district
court proceedings. See id. (holding that under plain error review the defendant bears
the burden of persuasion with respect to prejudice). We thus conclude that their
admission did not affect Moore’s substantial rights.
D. Alleged Ineffective Assistance of Counsel
Moore contends that he was denied his Sixth Amendment right to effective
assistance of counsel because of his counsel’s failure to interview and present certain
defense witnesses and to obtain the evidence presented to the grand jury. Our normal
practice is to decline to consider ineffective assistance claims on direct appeal. See
United States v. Jones, 586 F.3d 573, 576 (8th Cir. 2009) (“[S]uch claims usually
involve facts outside of the existing record and are therefore best addressed in
postconviction proceedings.”) We disagree with Moore’s contention that the
ineffectiveness of his counsel’s representation is readily apparent from the record, and
thus we conclude that this claim should be raised in a collateral proceeding under 28
U.S.C. § 2255.
III.
The conviction is affirmed.
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