In the
United States Court of Appeals
For the Seventh Circuit
No. 08-4292
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A NTHONY E. M OORE, also known as A RAB,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 4:06-CR-40063—J. Phil Gilbert, Judge.
A RGUED N OVEMBER 3, 2010—D ECIDED A PRIL 14, 2011
Before E ASTERBROOK, Chief Judge, W ILLIAMS, Circuit
Judge, and P ALLMEYER, District Judge.
W ILLIAMS, Circuit Judge. Anthony E. Moore was con-
victed of conspiring to distribute drugs and of being a
The Honorable Rebecca R. Pallmeyer, United States District
Court Judge for the Northern District of Illinois, sitting by
designation.
2 No. 08-4292
felon in possession of a firearm. He now appeals his
conviction, asserting that the district court made four
reversible errors during his trial.
Moore first argues that the court should have ordered
a mistrial based on a question by the prosecutor re-
garding a gang. However, the prosecutor’s question did
not implicate Moore as a gang member and did not
deprive him of a fair trial. Moore’s next argument is that
the court erred procedurally and substantively in ad-
mitting evidence of Moore’s drug transactions that oc-
curred before the start of the charged conspiracy. We
find that although the court should have explained its
reasons for admission, the prior drug transaction
evidence was admissible to prove an element of the
charged crime and went towards Moore’s intent and
knowledge.
Next, Moore argues that the court should not have
admitted evidence that alluded to an involvement in dog
fighting. This evidence, however, also contained an
admission by Moore and its probative value outweighed
any danger of unfair prejudice. Moore also asserts that
the court should have ordered a mistrial after a juror
encountered an associate of Moore’s during a lunch
break and discussed the experience with her fellow
jurors afterward. But the court’s voir dire of the jury
following the juror’s incident was proper, the jury was
not compromised, and the juror did not discuss the trial
inappropriately. Finally, Moore argues that even if no
single trial error merits reversal, the cumulative effect
of the errors requires reversal. However, the cumulative
error doctrine does not apply because we do not find
No. 08-4292 3
that Moore identified more than one error. Therefore,
we affirm his conviction.1
I. BACKGROUND
On May 8, 2008, after a four-day trial, a jury convicted
Anthony Moore of conspiring to distribute 50 grams
or more of cocaine base from October 2002 to March 7,
2007, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and
of being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). The jury found him not guilty of
violating 18 U.S.C. § 924(c)(1)(A) and (B), possession
of a short-barreled shotgun in furtherance of a drug-
trafficking crime. Moore was sentenced to life imprison-
ment on the conspiracy charge and 120 months on
the firearm charge, to run concurrently. Additional facts
will be presented below where relevant.
II. ANALYSIS
A. Mistrial Motion Based on Prosecutor’s Question
Properly Denied
Moore argues that the prosecutor engaged in prosecuto-
rial misconduct by asking a question regarding a gang,
1
While this appeal was pending, the parties filed supple-
mental briefing to address the Fair Sentencing Act of 2010 and
whether its enactment affects Moore, who was sentenced in
2008. Because we have since held that the Fair Sentencing Act
is not retroactive, see United States v. Bell, 624 F.3d 803, 814
(7th Cir. 2010), the Act does not affect Moore’s sentence.
4 No. 08-4292
and that the court erred by not ordering a mistrial as
a result. This argument fails because the prosecutor’s
question did not constitute prosecutorial misconduct.
We review a district court’s decision on motions re-
questing a mistrial for an abuse of discretion. United
States v. Lane, 591 F.3d 921, 927 (7th Cir. 2010). In evalu-
ating claims of prosecutorial misconduct, we employ
a two-step process. We first look at the comment in isola-
tion to determine if it was improper. United States v. Hale,
448 F.3d 971, 986 (7th Cir. 2006). If we find that it was
improper, we must then examine the comment in light
of the record as a whole to determine whether the com-
ment deprived the defendant of a fair trial. Id. The
ultimate question is whether the comment “so infected
the trial with unfairness as to make the resulting convic-
tion a denial of due process.” Id.
Here, the government had witnesses who could testify
that Moore bragged about being a high-ranking member
of the Gangster Disciples street gang (“GDs”), and that
he used his status to recruit them into buying drugs
from and selling drugs with him. Moore’s trial was held
before a court that had a general policy of disallowing
gang affiliation testimony. This policy acknowledges
“the substantial risk of unfair prejudice attached to
gang affiliation evidence”, and our court’s directive of
“careful consideration by district courts in determining
the admissibility of gang membership and gang activ-
ity evidence.” United States v. Irvin, 87 F.3d 860, 864 (7th
Cir. 1996). The prosecutor had significant experience
appearing before the trial court, and was well aware of
No. 08-4292 5
its general policy of excluding evidence that could raise
an inference of gang membership and activity.
During a pre-trial motion hearing, the prosecutor ex-
plained that he wanted to elicit testimony about Moore
recruiting co-conspirators in his distribution of drugs,
but that he would “limit it to the best of my ability”. He
stated that, “I will not say, ‘Did the defendant say he
was the governor of the Gangster Disciples?’ I will stay
away from all of that and not even ask.” The court reiter-
ated that Moore’s gang affiliation was inadmissible,
but that “depending upon what a witness says in
response to a question either on direct or cross exam-
ination, the Court may instruct the jury regarding
[the issue of gangs] if it comes in.”
Devon Smith testified on the second day of trial. He was
not one of the witnesses who could testify to being re-
cruited by Moore. Instead, he was scheduled to testify
about buying drugs from Moore, selling drugs with him,
watching him sell drugs to other people, Moore’s
control over alleged crack houses, and Moore’s posses-
sion of guns. During Smith’s direct examination, the
following exchange took place between the prosecutor
and Smith:
Q [Prosecutor]. Now, a few days before you got
picked up on this case, did you have a conversation
with the defendant on 18th Street?
A [Smith]. Yes, I did.
* * *
6 No. 08-4292
Q. And what was he talking about?
A. He talking about he tired of these BDs down
there, and they were going to have to start paying
dues.
Q. Okay. He was tired of GDs down here?
A. Yes.
Q. What are GDs?
A. That’s another gang.
Q. Okay.
[Moore’s Attorney]: Objection, Your Honor. May
we approach?
THE COURT: No. The objection—
[Moore’s Attorney]: We had had a discussion.
THE COURT: I realize that.
Q [Prosecutor]. Let me ask you this way: Was there
another group of people?
A [Smith]. Yes, there was.
Q. And did you have a conversation with the
defendant?
A. Yes.
Q. And without going into—did he talk about
paying dues?
A. Yes, he did.
Q. What did he say about that?
No. 08-4292 7
A. He was talking about the GDs wanted to start
paying.
Q. Without saying any organizations—
A. He said people going to pay dues. He wanted
them to pay for the drugs that the other gang, the
other group of people was bringing in. And then
us, you know what I’m saying, the ones that was
in town and everything, making us all start
paying dues.
Q. He was wanting to make other people who
were selling drugs to pay dues to him?
A. Yes.
At the next break in trial, and outside the presence of
the jury, the following exchange took place between the
court and the parties:
THE COURT: With respect to Devon Smith . . . you
should not have asked the question. . . . What are
DBs or BDs? What are BDs? That just, you know,
you should not have asked that question. The
Court’s going to find that it’s harmless in
bringing up about the gang affiliation, but don’t
ask those types of questions. That invites the
gang affiliation.
[Prosecutor]: I apologize, Your Honor. Because
we weren’t talking about the Gangster Disciples
and he said BDs. I didn’t know if the jury under-
stood.
THE COURT: There are some things the jury
shouldn’t understand.
8 No. 08-4292
[Prosecutor]: I apologize. We aren’t talking about
an organization that Mr. Moore was in, but a
different one in town. I apologize to the Court
for doing that.
THE COURT: Stay away from that. The Court
finds it’s harmless.
[Moore’s Attorney]: Now that we’re outside the
scope of the jury, I request a mistrial.
THE COURT: I figured you would, and I’m deny-
ing the motion.
Moore’s claim of prosecutorial misconduct is based on
the question, “What are GDs?”. The district court did not
abuse its discretion in refusing to declare a mistrial
based on this question because, when viewed in isola-
tion, the question was not improper. And, in any event,
it did not deprive Moore of a fair trial.
As the prosecutor stated during his oral argument
before our court, he should not have asked the ques-
tion, “What are GDs?”. It necessitated testimony
regarding a gang, and any response to the question
would not have aided the jury in assessing the case
against Moore. However, though it was ill-advised,
the question was not improper in isolation because it
did not implicate Moore’s alleged personal affiliation
with the GDs, or with any gang. It is possible that
Moore, as an individual, would want and demand “dues”
from the “GDs” without having any gang affiliation
himself. Even if the question called for testimony about
a gang generally, it does not mean that the question
No. 08-4292 9
necessitated testimony regarding Moore’s membership
within or leadership of the GDs.2
Even if we had found that the question was improper
in isolation, it would still not necessitate reversal be-
cause it did not deprive Moore of a fair trial. Indeed, any
inference of an alleged gang affiliation played a minor
role in Moore’s trial. First, no witness directly testified
to Moore’s membership within, or leadership of, the
GDs. 3 Second, witness testimony regarding gangs hardly
appears in the record, perhaps because the prosecutor
went to great lengths to avoid such testimony. For exam-
2
It also seems that the court reporter may have misheard or
misrecorded the prosecutor’s question. Smith’s recorded
testimony referenced “BDs”. Referring to the prosecutor’s
question, the court said, “you should not have asked the
question. . . . What are BDs”. In response the prosecutor said,
“we weren’t talking about the Gangster Disciples and he
said BDs.” If the prosecutor did indeed ask for clarification
about what “BD” meant, it lends more support to our conclu-
sion that the prosecutor was not seeking information about
Moore’s alleged association with or control over the GDs.
3
One of the government witnesses testified that Moore said he
would have “the GDs . . . kill” a witness in the case. But the
question that elicited this response—“And did he say, did
Anthony Moore say anything about Mr. Lott, about what he
was going to do?”—was not improper because it did not
compel testimony about gang membership. When the
prosecutor asked a different government witness a similar
question—“What did you hear the defendant say about
Ronnie Lott?”—the witness replied, “He was going to have
him killed”, without mentioning the GDs.
10 No. 08-4292
ple, the prosecutor would preface questions with state-
ments such as, “Without going into any organizations the
defendant might have told you about. . .”. And, at one
point at a sidebar, the prosecutor advised the court that,
“I may have to lead this witness a little bit so he
doesn’t mention GD.” Later on in the sidebar, the court
said, “Why don’t you ask him what 7-4 means”, even
though the court had previously warned the parties not to
explain “7-4”, which is a moniker often given to GDs
because G is the seventh letter of the alphabet and D is the
fourth letter of the alphabet. The prosecutor replied, “I’m
not going to . . . [the witness] might blurt out [that Moore]
said he was the governor of the GDs running in Mt.
Vernon. I need to lead him a little bit about guns and
drugs so he doesn’t blurt anything out.”
Finally, during its pre-trial motion hearing, the court
said that it would consider providing a cautionary jury
instruction regarding gangs depending on witnesses’
testimony on direct or cross-examination. Moore did not
request a cautionary instruction after the prosecutor
asked the question he now challenges. During the jury
instruction conference which came directly before
closing arguments, the court gave Moore and the pros-
ecution its standard jury instructions, and let each side
propose additional instructions. Moore did not argue for
a cautionary jury instruction to address gang affilia-
tion. Moore’s failure to assert a need for a cautionary
instruction directly following the incident, or at the
close of evidence, in spite of the court’s clear willingness
to consider it, undermines his current argument that
any comment or reference regarding gang affiliation
No. 08-4292 11
“so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” Hale, 448
F.3d at 986.
The “[w]hat are GDs” question did not implicate
Moore’s alleged involvement with the organization. No
witness testified directly to Moore’s gang membership
or leadership. Gang references are few and far between
in the record. And Moore did not request a cautionary
jury instruction regarding gangs, in spite of the court’s
express willingness to consider it. Because the ques-
tion was not improper in isolation and it did not deprive
Moore of a fair trial, the district court did not abuse
its discretion in denying Moore’s motion for a mistrial.
B. Evidence of Prior Drug Transactions Was Admis-
sible
The court allowed evidence of some of Moore’s drug
transactions that occurred before the indictment’s
charged conspiracy start date of October 2002. The
court admitted the evidence under the exceptions to the
exclusionary rule of Federal Rule of Evidence 404(b).
Moore argues that the court erred procedurally by not
explaining why it was admitting the evidence, and sub-
stantively because the evidence does not meet the rule’s
standard for admissibility. We find that while the court
should have explained its rationale, it did not ultimately
err in admitting the evidence.
Federal Rule of Evidence 404(b) prohibits evidence
of other crimes, wrongs, or acts to prove that a person
12 No. 08-4292
has a propensity to commit the crime in question. How-
ever, evidence otherwise excludable per this rule may
be admissible for certain purposes, such as “proof of
motive, opportunity, intent, preparation, plan, knowl-
edge, identity, or absence of mistake or accident”. Fed. R.
Evid. 404(b). We review a district court’s decision to
allow Rule 404(b) evidence for an abuse of discretion.
United States v. Holt, 460 F.3d 934, 936 (7th Cir. 2006). Even
if there is a mistake, we will not reverse if the error
was harmless. United States v. Bonty, 383 F.3d 575, 579
(7th Cir. 2004). Therefore, we evaluate evidentiary chal-
lenges like Moore’s in light of all the evidence that was
before the jury. Holt, 460 F.3d at 936.
The first set of evidence that Moore contends was
improperly admitted involved drug transactions from
June of 2000. Police Captain Ron Almaroad testified that
he coordinated a controlled buy between Moore and
an informant where Moore sold the informant crack
cocaine for twenty dollars. A videotape of the controlled
buy was admitted as evidence and played for the jury.
Still photographs of the transaction were also admitted
as evidence, as well as a sealed evidence bag con-
taining the crack cocaine that exchanged hands. Captain
Almaroad further testified that another controlled buy
involving Moore and the same informant occurred the
next day. Photographs of this second transaction, and
a sealed evidence bag containing the crack cocaine that
was sold, were also admitted as evidence. As a result of
these two sales, Moore was convicted in November of
2000 for unlawful delivery of a controlled substance,
which, under Illinois law, is a felony. The certified court
No. 08-4292 13
documents of this conviction were admitted into evi-
dence. The second set of prior drug activity evidence
was the testimony by Devon Smith. Smith testified that
he had limited involvement with Moore in 2000 and 2001
and bought drugs from him in $20, $50, and, rarely, $100
increments. The court admitted the two sets of evidence
over Moore’s objection pursuant to Federal Rule of Evi-
dence 404(b), but did not explain under what theory the
rule applied. Instead, the court simply said that the
evidence “would be 404(b), and the court’s going to allow
that with the cautionary 404(b) instruction.” Indeed, before
Captain Almaroad’s testimony, the court instructed the
jury that “the evidence you are about to hear is for a
limited purpose. You can consider this testimony only
on the person’s knowledge, intent, and opportunity
rather than the propensity for him to commit the crimes
charged in this indictment. You should consider this
evidence only for this limited purpose.” The court also
gave an instruction directly before Smith’s testimony
that was substantively identical. Finally, the court gave
another Rule 404(b) limiting instruction at the close of
evidence that was similar to the two previous instruc-
tions, but replaced the rule’s “opportunity” exception
with the “lack of mistake” exception.
The court should have explained its rationale in admit-
ting the evidence pursuant to Rule 404(b) (just as the
parties should have requested an explanation in the
absence of one). In evaluating potential Rule 404(b) evi-
dence, the court must both identify the exception
that applies to the evidence and evaluate whether the
probative value of the evidence outweighs its potential
14 No. 08-4292
prejudicial effect. United States v. Beasley, 809 F.2d 1273,
1279 (7th Cir. 1987). If the court does not explain its
decision in admitting Rule 404(b) evidence, we have no
way to determine whether this necessary balancing test
occurred. This is especially problematic here, where the
court gave slightly different Rule 404(b) limiting instruc-
tions because it replaced the “opportunity” exception with
the “lack of mistake” exception during its delivery of the
final instructions at the close of evidence.
There are important considerations underlying our
past guidance that it is “prudent for district courts to
give the basis for the admission of Rule 404(b) evidence
at the time of the ruling.” United States v. Albiola, 624
F.3d 431, 439 (7th Cir. 2010). But see United States v.
Ciesiolka, 614 F.3d 347, 360 n.2 (7th Cir. 2010) (Ripple, J.,
dissenting) (arguing that a district court may explain its
Rule 404(b) weighing after the evidence has been admit-
ted). Explaining evidentiary decisions in a timely manner
is important to the defendant, who may be entitled to a
new trial based on faulty admission of evidence. It is
vital to the judicial system, because its “principled and
just functioning . . . depends on careful observation of the
rules that focus attention on the proper grounds of deci-
sion.” Beasley, 809 F.2d at 1279. And it is critical to the
appellate courts, because without it we lose the benefit
of the trial court’s invaluable perspective and insight in
evaluating the propriety of its decisions. Id. at 1278 (“Trial
judges have a comparative advantage because they
alone see all the evidence in context”). This is not to say, of
course, that the court should explain each and every
evidentiary decision; “[j]udges need not explain the
obvious, even briefly.” Id. at 1280. But where, as here,
No. 08-4292 15
reasonable minds could disagree as to which exception
to Rule 404(b) applies, whether an exception applies at
all, and whether the strength of the evidence outweighs
its potential for undue prejudice, an explanation is war-
ranted.
Additionally, when the court explains for the attorneys
and the record why it is allowing certain Rule 404(b)
evidence, that rationale becomes the basis for its limiting
instruction. 4 The committee commentary for our court’s
model Rule 404(b) instruction explains that such evi-
dence may be admissible for purposes such as proof of
predisposition, motive, opportunity, intent, preparation,
plan, knowledge, identity, presence, or absence of mis-
take or accident. This list does not include every possible
basis for the admissibility of this type of evidence, nor
does it suggest which one will necessarily apply. The
facts and circumstances of the case will determine on
what ground certain evidence is admissible. Here, it is
possible that the court believed that all of its stated ex-
ceptions of knowledge, intent, opportunity, and lack of
mistake applied, but it should have explained why.
4
Our court’s model instruction for Rule 404(b) evidence
states: “You have heard evidence of acts of the defendant other
than those charged in the indictment. You may consider
this evidence only on the question of _________. You should
consider this evidence only for this limited purpose.” See
Pattern Criminal Federal Jury Instruction for the Seventh
Circuit number 3.04, “Proof of Other Crimes or Acts”, available
at http://www.ca7.uscourts.gov/pjury.pdf (last visited April 11,
2011).
16 No. 08-4292
In this case, although the trial court should have ex-
plained its decisions, we ultimately conclude that it did
not err in admitting the evidence. We use a four-part
test to determine whether the district court properly
admitted evidence under an exception to Rule 404(b),
and will find no error if: (1) the evidence was directed
toward a matter in issue other than the defendant’s
propensity to commit a crime; (2) the evidence shows
that the other act is similar enough and close enough
in time to be relevant; (3) the evidence is sufficient to
support a jury finding that the defendant committed the
similar act; and (4) the probative value of the evidence
is not substantially outweighed by the danger of unfair
prejudice. United States v. Dennis, 497 F.3d 765, 768 (7th
Cir. 2007).
1. Captain Almaroad Rule 404(b) Evidence
Applying the four-part admissibility test to Captain
Almaroad’s testimony and related documents, we find
that the court did not err in admitting the evidence. The
first prong of the test, which necessitates that the
evidence be directed to a matter other than a propensity
to commit a crime, is satisfied because Moore was
charged with being a felon in possession of a firearm, and
he did not stipulate to a prior felony conviction. As a
result, the government had to prove, beyond a rea-
sonable doubt, that Moore had been convicted of a prior
felony. Had Moore stipulated to a prior felony convic-
tion or agreed to the admission of the certified record of
conviction, our analysis would be different because
No. 08-4292 17
either would have been properly admitted into evidence,
and the details surrounding the drug transactions would
not have been admissible. Old Chief v. United States, 519
U.S. 172, 174 (1997); see also United States v. Hampton, 585
F.3d 1033, 1041 n.2 (7th Cir. 2009).
The second prong of the test is met because selling crack
cocaine twice is similar enough to the charged crime of
conspiracy to distribute crack cocaine, and the transac-
tions were close enough in time (two years) to be rele-
vant. See United States v. Wash, 231 F.3d 366, 371 (7th Cir.
2000) (similarity prong met where prior bad acts
and current conviction both implicated defendant in
possessing distribution amount of drugs); United States
v. Ruiz, 178 F.3d 877, 880 (7th Cir. 1999) (two-year gap in
time not an inherently unacceptable gap under Rule
404(b)). The evidence consisting of sworn testimony,
video, photographs, the crack cocaine that exchanged
hands, and a certified record of conviction was more
than sufficient to support the jury’s finding that Moore
committed the prior similar act, so the third part of the
test is met.
The final prong of the Rule 404(b) test incorporates
Rule 403. Ciesiolka, 614 F.3d at 358. Whether it is satisfied
in this case is a close question for the same reason that
the sufficiency of the evidence prong is so easily met.
Under Rule 403, evidence may be excluded “if its proba-
tive value is substantially outweighed by the danger of
unfair prejudice”, or because of “needless presentation
18 No. 08-4292
of cumulative evidence.” Fed. R. Evid. 403.5 The proba-
tive value of the June 2000 drug conviction evidence
was high because it went directly to an element of the
charged crime of being a felon in possession of a firearm.
The threat of unfair prejudice was tempered because the
court diligently provided the jury with a Rule 404(b)
limiting instruction right before the evidence was
offered, and again at the close of all evidence. And
“[a]bsent any showing that the jury could not follow the
court’s limiting instruction, we presume that the jury
limited its consideration of the testimony in accordance
with the court’s instruction.” United States v. Zahursky,
580 F.3d 515, 525-26 (7th Cir. 2009) (citation omitted);
see also United States v. Vargas, 552 F.3d 550, 557 (7th
Cir. 2008) (“[W]e assume that limiting instructions are
effective in reducing or eliminating unfair prejudice.”).
In terms of the “cumulative” consideration portion of
the Rule 404(b) test, it appears at first glance that the
admittance of Captain Almaroad’s testimony, and the
video, and the photographs, and the crack cocaine, and
the certified conviction documents, was excessive. And
our review is made more difficult because we do not
have any statements by the court explaining its rationale
in allowing all of this evidence to be admitted. However,
our review of the record ultimately convinces us that
the evidence was not cumulative. In most cases a
certified record of conviction would be sufficient to
prove a prior felony conviction beyond a reasonable
5
Moore also raised a Rule 403 objection at trial.
No. 08-4292 19
doubt but here, there was another “Anthony Moore” that
lived in the area. The additional evidence was helpful
to the jury because it needed evidence that the “Anthony
Moore” listed on the state conviction records was the
same person that was on trial. Also, considering the
context of a relatively involved criminal trial that
featured 30 government witnesses and 109 government
exhibits, the evidence for the June 2000 transactions does
not seem excessive. Since the June 2000 evidence satisfies
the four-part Rule 404(b) admissibility test, the court
did not abuse its discretion in admitting it.
2. Devon Smith Rule 404(b) Evidence
Turning to Smith’s testimony, we find that the district
court did not err in allowing it into evidence because it
also meets the four-part Rule 404(b) test for admittance.
Smith testified that he had limited involvement with
Moore in 2000 and 2001. Specifically, he said he bought
“double-ups” ($20 crack rocks) from Moore in certain
increments at a particular location in the city. The
evidence was directed toward Moore’s intent and knowl-
edge in distributing drugs, which are crucial consider-
ations in establishing the intent necessary for conspiracy
to distribute drugs. See United States v. Green, 258 F.3d
683, 694 (7th Cir. 2001) (when a defendant is charged
with the specific intent crime of conspiracy to distribute
drugs, prior drug transactions may be relevant to show
knowledge and intent). And here, all four of Moore’s
witnesses testified that they never saw him sell drugs
from the house or apartment they lived in or frequented,
20 No. 08-4292
so his intent and knowledge were issues at trial. Smith’s
testimony that he bought crack cocaine from Moore one
to two years before the indictment’s charged start date
of conspiracy to distribute crack cocaine satisfies the
similarity and proximity prong. The sufficiency-of-the-
evidence prong is met because Smith provided eye-
witness testimony featuring specific details about his
mode and location in purchasing drugs from Moore. And,
finally, the evidence did not violate the final prong of the
Rule 404(b) test because it was limited in scope (only 13
lines of question-and-answer trial transcript testimony),
and the court offered a limiting instruction before the
introduction of the evidence and again at the close of
evidence. Although the court should have explained its
rationale, it did not abuse its discretion in admitting
the evidence of Moore’s prior drug transactions under
the exceptions to Rule 404(b).
C. No Error in Admitting Evidence Suggestive of
Dog Fighting
Moore contends that the court should not have
admitted testimony and documents from Ruth Hughes,
who was a supervisor with Jefferson County Animal
Control. He asserts that the evidence was unfairly prej-
udicial because it implicated him in dog fighting, and
should have been excluded under Federal Rule of
Evidence 403. We find that the district court did not err
in allowing the evidence because it was probative of
Moore’s control over a disputed residence, and not
unfairly prejudicial.
No. 08-4292 21
Relevant evidence may be excluded under Rule 403 if
its probative value is substantially outweighed by the
danger of unfair prejudice. Fed. R. Evid. 403. The rule
“calls upon the district court to weigh the need for and
probative value of the evidence against potential harm
that its admission might cause.” Mihailovich v. Laatsch, 359
F.3d 892, 906 (7th Cir. 2004). Although we ordinarily
review a district court’s evidentiary rulings under an
abuse of discretion standard, we give “special deference”
to the district court’s findings pursuant to Rule 403, and
reverse only when “no reasonable person could take the
view adopted by the trial court.” United States v. LeShore,
543 F.3d 935, 939 (7th Cir. 2008).
On January 12, 2007, the police executed a search
warrant of 1110 Prairie Avenue; Moore was not present
in the house at the time. During trial, Captain Almaroad
testified that guns, ammunition, scales, plastic baggies,
and crack cocaine were found within the house. An
assault rifle and ammunition were found in the trunk of
a broken-down car outside the house. Other witnesses
testified that drugs were frequently sold in and around
the house, guns were often present within the house,
certain individuals had been “jumped” (beaten up) or
shot there, and that the house was commonly known as
“Murder Ave.”
An issue at trial was whether Moore lived in or had
control over the house. During the cross-examination of
Captain Almaroad, Moore’s attorney elicited testimony
that no men’s clothing, no mail addressed to Moore, and
no identification cards belonging to Moore were found
22 No. 08-4292
inside the house during the execution of the search war-
rant, and that other people’s fingerprints were found on
an assault rifle. When Moore presented his defense,
three of his four witnesses testified that they never
saw him sell drugs at the house, and that it was Moore’s
father, not the defendant, who owned it. And in closing
argument, Moore’s attorney asserted that the govern-
ment had not met its burden in connecting Moore to the
property. In his effort to establish Moore’s control over
“Murder Ave.”, the prosecutor introduced evidence
from 12 witnesses. He presented the testimony of drug
dealers, drug users, and officers who placed Moore at
the house at various times. He introduced the customer
record for a utility company, which showed that the
service for the house was in Moore’s name. The prosecutor
also introduced the testimony of Hughes, the employee
with Animal Control.
Hughes testified that her job duties included handling
“all complaints on abuse. . . . If there’s any kind of dog
fights or anything, mistreated animals, we answer all
those calls.” She testified that four pit bulls were
recovered by her department from 1110 Prairie in July
of 2000. When the prosecutor moved to admit a docu-
ment that was related to that recovery, Moore’s counsel
moved to have the document excluded or redacted under
Federal Rule of Evidence 403 because it referenced “pit
bulls and fighting”, and he believed it would “inflame
and infuriate the jury.” At a sidebar, the prosecutor
argued that Moore had previously been given the docu-
ments and knew that Hughes was going to be called, yet
did not raise the objection in a motion in limine. He
No. 08-4292 23
also said he needed to rebut Moore’s contention that he
did not live at or have control over 1110 Prairie. The
court overruled Moore’s objection, and the document
was published for the jury. The listed name of the owner
of the property was “Anthony Moore”. Hughes also
testified that Moore came to the department’s holding
facility to claim the dogs. Hughes further testified that
five pit bulls were recovered from the same address in
July of 2006. This second time, when Moore came to the
holding facility to pick up one of the dogs, Moore signed
the forms that listed his name as the owner of the dogs.
Hughes then asked him if he lived at 1110 Prairie
because they thought the house may have been vacant.
She said that Moore replied, “that’s my residence. I live
there.”
Moore argues that the evidence was unduly prejudicial
because it implicated him in dog fighting and that the
prejudice was compounded because the trial occurred
approximately five months after professional football
player Michael Vick was sentenced to federal prison on
charges associated with dog fighting. The government
counters that the evidence did not necessarily raise a
presumption of dog fighting. And, even if it did, it
was not unfairly prejudicial or the error was harmless
given the overwhelming evidence of Moore’s guilt.
Hughes’s testimony undoubtedly raised an inference
that the dogs recovered from 1110 Prairie were subjected
to dog fighting. Her department was responsible for
investigating potential cases of dog fighting, and
there were a total of nine pit bulls recovered from 1110
24 No. 08-4292
Prairie. However, Hughes’s testimony was also highly
probative. Of the 12 witnesses the government offered to
establish Moore’s control over the house, Hughes was
the only one who testified to Moore’s admission that
1110 Prairie was his residence. And the Animal Control
records were one of only two sets of business records
that featured both the address of 1110 Prairie and
Moore’s name on them. The only other document
admitted was the customer record from the utility com-
pany, which, as Moore’s attorney emphasized during
his cross-examination of the company’s office coordinator,
did not necessarily establish Moore’s control over the
property (“You don’t know who made the request for
that service?”; “You don’t know if somebody called in
and asked that it be placed in the name of Anthony
Moore?”; “It is possible it could have been put in his
name?”; “And it’s also possible that the resident there
may not have been Anthony Moore, isn’t it?”). Given the
highly probative nature of Hughes’s testimony and
related documents, and the relatively minor additional
prejudice of introducing an inference of dog fighting to a
house that was known for drugs, guns, violence, and
was nicknamed, “Murder Ave.”, we find that the court
did not err in denying Moore’s motion to exclude
the evidence pursuant to Rule 403.
D. Motion for Mistrial Based on Juror’s Interaction
Properly Denied
Moore argues that the court should have granted his
motion for a mistrial because a juror encountered one of
No. 08-4292 25
his associates at a local sandwich shop during a lunch
break, and because she told five of her fellow jurors
about the experience afterward. He contends that the
jury was compromised because of the incident, the
court’s subsequent questioning of the jury was insuf-
ficient, and the juror’s relaying of the experience to her
fellow jurors violated the court’s order not to discuss the
case before deliberations. We reject these arguments
because the court’s response to the unintentional inter-
action was proper, and there is no indication in the
record that the jury was compromised or that the jury
discussed Moore’s case before deliberations.
We review a district court’s decision on motions re-
questing a mistrial for an abuse of discretion. Lane, 591
F.3d at 927. The trial court “is in the best position to
determine the seriousness of the incident in question,
particularly as it relates to what has transpired in the
course of the trial.” United States v. Clarke, 227 F.3d 874,
881 (7th Cir. 2000). In a criminal case, any private com-
munication, contact, or tampering—directly or indi-
rectly—with a juror during a trial about the matter
pending before the jury is presumptively prejudicial.
Remmer v. United States, 347 U.S. 227, 229 (1954). However,
the presumption is not conclusive. The burden rests
heavily on the government to establish that the contact
was harmless. Id.; United States v. Al-Shahin, 474 F.3d 941,
949 (7th Cir. 2007). The trial court has substantial discre-
tion in handling extrajudicial juror communications. Al-
Shahin, 474 F.3d at 949; United States v. Thibodeaux, 758
F.2d 199, 202 (7th Cir. 1985). It decides how to structure
26 No. 08-4292
its investigation into a potentially harmful communica-
tion. United States v. Warner, 498 F.3d 666, 680 (7th Cir.
2007). And, depending on the facts before it, it may right-
fully decide that no formal hearing or structured voir dire
of the jury is necessary at all. See, e.g., Whitehead v. Cowan,
263 F.3d 708, 723 (7th Cir. 2001) (hearing unnecessary
where incident did not address a matter at issue in trial,
provide new information to the jury, or demonstrate
a likelihood of affecting deliberations).
With these standards in mind, we turn to the facts of
this case. The court advised the jurors on the first day of
trial that they needed to notify the court if they had any
contact with the attorneys outside of the courtroom, or
anything unusual happened. On the third day of trial,
one of the jurors, Juror I,6 reported that during the lunch
break, she went to a local sandwich shop, and some of
Moore’s family and friends were there. As she was
leaving the store, one of the persons in the group did not
move out of her way, so she had to walk around him.
She had lunch with five of her fellow jurors that day,
and told them what happened. She then reported the
incident to the court. Outside the presence of the rest of
the jury and the parties, the court spoke with Juror I.
Then, outside the presence of the jury and Moore, the
judge told Moore’s attorney and the prosecutor what
happened and that he had spoken with Juror I privately.
The court reported that Juror I “said she didn’t feel in-
timidated or fearful. She wasn’t afraid or anything. And
6
Jurors will be referred to by the first initial of their last name.
No. 08-4292 27
that she indicated it does not affect her consideration of
the case.”
The court decided that it would conduct a more
thorough voir dire of Juror I regarding the incident, as well
as question each of the five jurors she spoke to. Each
session occurred in a closed courtroom, on the record, and
outside the presence of any other juror or party. Juror I
relayed the incident as follows:
I was at Subway and I had gotten what I had
ordered. And while I was paying, I turned around
and looked at the door and I saw the people that
had been sitting in the back watching what was
going on in court close to the door. And when
I got my change, I started to the door and the
ladies, they was all scattered out. The lady got in
one line and the man stepped out, and I couldn’t
get past there, and he didn’t move so I went
around him, the ladies, around to the door to go.
Got in my car and I left.
The court then conducted a voir dire of each juror
that Juror I had lunch with. Each of the five jurors relayed
some variation of the fact that Juror I had to walk
around Moore’s associate to leave the sandwich shop. For
example, Juror B testified that she was told that “when
[Juror I] got ready to leave the Subway, she had to—the
gentleman was in the way so she had to walk around him
and around the other women.” Juror T said that “the
people with [Moore’s associate] stepped away and he
didn’t. And she was—she felt she had to walk around
him, but nothing really happened.” Each juror stated that
28 No. 08-4292
it would not affect his or her ability to remain fair and
impartial.
The court then brought Moore, his attorney, and
the prosecution back into the courtroom and issued its
findings on the incident. It stated that:
The court is convinced that this jury has not been
tainted or compromised. Each one of them said
that they would not hold it against [Moore]. And
in fact most of them, in fact the ones that were
just told this, indicated it was just no big deal,
including the one that this happened to.
Moore’s attorney moved for mistrial “out of concern
for my client’s fairness to the trial and the fact that we
have so many weapons that have been exhibited . . . . I’m
still fearful the jurors, to themselves, may be concealing
their own personal feelings about these things and could
be fearful. I think we should err on the side of caution.”
The court denied the motion for mistrial, finding that
the jury had not been compromised by the lunchtime
encounter. On appeal, Moore argues that the court’s voir
dire of the jury was insufficient, and that it should have
declared a mistrial because the encounter prejudiced
the jury against him. He also contends that Juror I’s
relaying of the experience to her fellow jurors violated
the court’s instruction not to discuss the case prior to
deliberations.
Moore’s argument that the court’s inquiry was insuf-
ficiently tailored does not withstand scrutiny. The court
is given the flexibility on whether and how to question
a jury following a potentially improper extrajudicial
No. 08-4292 29
incident. Warner, 498 F.3d at 680. Here, the court chose
to conduct a formalized inquiry even though Juror I’s
interaction with Moore’s associate, where no words,
gestures, or materials were exchanged, is not of the type
that necessarily raises a presumption of prejudice. See
Brown v. Finnan, 598 F.3d 416, 425 (7th Cir. 2010) (ques-
tioning prejudicial effect where comment did not weigh
on perceived guilt or innocence, and there was no
attempt at persuasion or delivery of extraneous infor-
mation). The court’s decision to individually question
Juror I as well as each juror she spoke to was a proper
and thorough exercise of its discretion.
Moore’s argument that a mistrial was necessary
because the jury was compromised must fail because
there is no sign of an adverse impact in the record. At
the time of the lunchtime incident Moore’s attorney
speculated that the jurors may have been fearful, and
proposed that the court “err on the side of caution” in its
reaction, but speculation alone is insufficient to trigger
a mistrial. Quite simply, “due process does not re-
quire a new trial every time a juror has been placed in
a potentially compromising situation. Were that the
rule, few trials would be constitutionally acceptable.”
Warner, 498 F.3d at 679 (citation omitted). The jurors
stated that “nothing really happened” and that they
remained impartial. Their belief that they could deliver
a fair and just verdict is supported by their conviction
of Moore on two charges, but acquittal on a third. The
court did not err in its response to the unintentional
encounter, or in finding after its investigation that the
jury was not compromised.
30 No. 08-4292
Finally, Moore argues that Juror I’s relaying of her
experience to five of her fellow jurors violated the
court’s order not to discuss the trial before deliberations.
He correctly notes that if the court instructs the jury not
to discuss the trial until deliberations, it is juror miscon-
duct if such communication occurs. Al-Shahin, 474 F.3d
at 949. However, there is no indication in the record
that Juror I discussed the facts of the case against Moore,
or any notion of perceived guilt or innocence. On the
contrary, Juror I’s prompt disclosure shows that she
was diligent in following the court’s instruction to
report any outside contact, so the court did not abuse
its discretion in denying the motion for mistrial.
E. Cumulative Error Doctrine Does Not Apply
Moore contends that even if no single error in his trial
merits reversal, the cumulative effect of the errors neces-
sitates reversal. He notes that “[c]umulative errors,
while individually harmless, when taken together can
prejudice a defendant as much as a single reversible error
and violate a defendant’s right to due process of law.”
United States v. Allen, 269 F.3d 842, 847 (7th Cir. 2001). To
demonstrate cumulative error, Moore must show that
(1) at least two errors were committed during his trial;
and (2) these errors denied him a fundamentally fair
trial. Alvarez v. Boyd, 225 F.3d 820, 824 (7th Cir. 2000).
But because we find that Moore did not identify more
than one error, the cumulative error doctrine does not
apply.
No. 08-4292 31
III. CONCLUSION
For the reasons stated above, Moore’s conviction and
sentence are A FFIRMED.
4-14-11