United States Court of Appeals
For the First Circuit
No. 13-2352
UNITED STATES,
Appellee,
v.
TERRANCE MOON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Selya, Circuit Judge,
Souter,* Associate Justice,
and Lipez, Circuit Judge.
Derege B. Demissie for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief for appellee.
September 18, 2015
*
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
LIPEZ, Circuit Judge. Appellant Terrance Moon challenges
his conviction for being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. § 922(g)(1), on numerous
evidentiary grounds. He also challenges his sentence under the
Armed Career Criminal Act ("ACCA"). Finding no merit to any of
these challenges, we affirm.
I.
A. Factual Background
The following facts are undisputed. On February 5, 2011,
Detective Michael Ross obtained search warrants for Moon's person
and an apartment at 99 Ormond Street in Boston. In his supporting
affidavit, Ross stated that, based on information from a
confidential informant ("CI") who previously purchased heroin from
Moon, the Boston Police Department ("BPD") had conducted
surveillance of three recent controlled buys by this CI from Moon,
including one within the "last seventy-two hours." Ross stated
that during that most recent transaction, Moon was spotted driving
a green Mercedes that was registered to Sherrica Hendricks, his
longtime girlfriend, at 99 Ormond Street, Apartment #1, in
Mattapan.1
1
Ross also stated that he had intentionally avoided including
details about past investigations in which the CI had provided
reliable information to preserve the BPD's ability to work with
informants and protect the CI from harm. He explained that
providing identifying information about past investigations would
allow persons to build a "pyramid" in an attempt to identify the
-2-
The next day, officers arrived at 99 Ormond Street to
execute the search warrants. Detective Ross and Sergeant Detective
Paul Murphy observed Moon exit 99 Ormond Street, walk down the
street to meet with an unknown individual, and return to the
building. The officers approached Moon, read him his Miranda
rights and searched his person, recovering, among other things, a
set of keys. The officers told Moon they had a search warrant for
his apartment at 99 Ormond Street, but Moon denied that he lived at
that location. When Ross told Moon he had just seen him leaving
the building, Moon admitted he lived there. Officer Steven
Smigliani arrived at the scene and placed Moon in the back of his
cruiser while Ross and Murphy searched Moon's apartment. Ross
opened the apartment with the keys he had recovered from Moon's
pocket. Moon was escorted into the apartment, where Ross showed
him a copy of the search warrant and asked if there were any drugs
in the apartment. Moon responded that there were some drugs on a
nightstand in a red box in his downstairs bedroom.
During the subsequent search of Moon's bedroom, the
officers found plastic bags containing what appeared to be crack
cocaine and heroin in a small, red box on the nightstand, and a
larger bag of heroin within a large bag of rice in the nightstand.
The officers found another bag containing heroin packed in rice
under the bed, and in various locations around the room they
informant, thereby putting him/her at risk.
-3-
discovered drug paraphernalia: a scale with drug residue (found
inside the nightstand), a box of plastic baggies, several cut-off
baggies, a plate with a razor blade on it, a spoon, and a sifter.
Under the mattress on the bed, the officers found a Sturm, Ruger &
Co. Model Service-Six .357-caliber revolver loaded with six rounds
of ammunition. The officers also found documents bearing Moon's
name in the bedroom, including his birth certificate, resume, and
prescription medication.
The officers reported the firearm and ammunition to
Officer Smigliani, who was by then at the police station with Moon.
Smigliani notified the booking officer to add a firearm and
ammunition charge to the drug charges already being processed.
B. Procedural Background
1. The Indictment
On June 8, 2011, a federal grand jury returned a multi-
count indictment charging Moon with possession with intent to
distribute heroin and cocaine, in violation of 21 U.S.C. § 841(a)
(Counts One and Two); being a felon2 in possession of a firearm and
ammunition, in violation of 18 U.S.C. § 922(g)(1) (Count Three);
and possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1) (Count Four). The
government voluntarily dismissed the drug trafficking counts after
2
The parties stipulated that Moon had a qualifying felony
conviction.
-4-
learning that the substances had been tested by a state laboratory
chemist who had used improper techniques.3 The case thus moved
forward with only the single felon-in-possession charge.
2. Pre-Trial Motions
Moon unsuccessfully filed a series of pretrial motions
seeking to suppress evidence concerning the drugs and drug
paraphernalia found at his apartment and to obtain copies of
affidavits prepared by BPD officers about the CI and the controlled
buys. He requested a Franks hearing to probe the veracity of
Detective Ross's affidavit and its adequacy to support the search
warrants executed at his apartment. See Franks v. Delaware, 438
U.S. 154, 155-56 (1978). He also renewed a previously filed motion
for discovery of any exculpatory evidence regarding the CI, as well
as the exact dates and times of the controlled buys. The district
court denied both motions.
Moon also moved in limine under Federal Rules of Evidence
404(b) and 403 to exclude testimony regarding the heroin and crack
cocaine found in his bedroom and his statements to the officers
regarding the drugs, contending that such information would be
unfairly prejudicial evidence of uncharged conduct. In opposing
the motion, the government stated that it intended to introduce
evidence showing where the drugs and drug-related items were found
3
See Wilkins v. United States, 754 F.3d 24, 27 (1st Cir.
2014) (discussing state drug-testing laboratory scandal).
-5-
in Moon's apartment because that information went "directly to
proving the element of knowing possession of a firearm, including
by way of showing motive." The government also explained that the
recovery of cocaine and heroin from the red box on the nightstand
-- where Moon said drugs could be found -- provided "direct and
powerful evidence of defendant's dominion and control over the very
room in which the firearm at issue lay."
The district court denied the motion, finding the drug
evidence had special relevance under Rule 404(b) to prove Moon's
knowledge of and dominion over the firearm. After conducting its
Rule 403 balancing, the court held that the probative value of the
drug evidence was not outweighed by any threat of unfair prejudice.
The court proposed to give the jury a limiting instruction at the
time the drug evidence was introduced.
In early January 2013, as his trial approached, Moon
moved for an order requiring the government to furnish any
exculpatory evidence regarding the CI to the district court for in
camera review. He argued that the government's intention to
introduce evidence depicting him as a drug dealer, based on
"purported controlled buys," "entitled [him] at a minimum, [to] an
in camera review [of] the requested evidence prior to his trial."
Moon clarified that he was "not request[ing] disclosure of the
information but rather an in camera review by the Court to verify
the Informant's existence and his or her actual participation in
-6-
the controlled buys." He claimed that such a review was necessary
because "various allegations of misconduct" against Detective Ross
and Sergeant Detective Murphy, resulting in "'not sustained' or
'exonerated' dispositions[,] . . . raise substantial questions as
to potential irregularities" in the BPD investigation. He further
argued that he was entitled to the requested discovery under Brady
v. Maryland, 373 U.S. 83 (1963).
The district court heard argument on the motion at the
pretrial conference, during which Moon's counsel emphasized "we're
not asking for disclosure" and "we're not asking them to disclose
it to us." After confirming that the government did not intend to
call the CI as a witness at trial, the court denied the motion.
In the week before his trial began, Moon filed a motion
in limine seeking to bar the government from eliciting expert
testimony from BPD officers about whether the physical evidence
discovered at Moon's apartment suggested drug distribution and
about the frequency with which firearms are found in connection
with drug distribution. Moon argued that such testimony would be
unfairly prejudicial as it would allow the government to introduce
uncharged conduct and indicate that the government believed he was
a drug dealer. He further asserted that such testimony would be
improper evidence of his "mental state as it relates to the
essential element of possession: knowledge and intent to exercise
-7-
dominion and control," and also would be impermissible expert
testimony. The court allowed the testimony.
Also shortly before trial, Moon objected to the
government's use of his prior convictions for impeachment. [App at
609] The district court ruled that the government could introduce
three 2008 convictions and a 2001 robbery conviction by asking Moon
about "the date of the conviction, the court, and the conviction
itself."
C. Verdict and Appeal
After a four-day trial, the jury found Moon guilty on the
firearms charge and the district court imposed a 220-month term of
imprisonment. On appeal, he challenges both his conviction and
sentence, claiming the district court erred when it (1) allowed the
government to present evidence of uncharged drug possession and
distribution throughout his trial, (2) allowed the government to
introduce evidence of the details of Moon's nearly ten-year-old
conviction for robbery, (3) allowed the arresting officers to offer
lay opinion testimony that the substances found in Moon's bedroom
were heroin and crack cocaine, and that drug dealers often possess
firearms, (4) denied his request for the disclosure of information
about the CI, or, in the alternative, to conduct an in camera
review of the documents supporting the search warrant application,
and (5) when it applied the ACCA in calculating his sentence.
-8-
II.
A. The Trial Testimony Pertinent to the Appeal
The jury heard nine witnesses, including Moon, during the
four days of trial. Six witnesses testified for the prosecution,
and three for the defense. We describe below the relevant
testimony.
1. Detectives Murphy and Ross
Detective Murphy testified that he has executed more than
500 search warrants, and that he identifies controlled substances
based on their shape, size, and the way in which they are packaged.
He stated that drug dealers use the corners of sandwich bags to
package drugs and the remaining part of the bag is known as a cut
baggie, several of which were found in Moon's apartment. Murphy
stated that he believed the substances found at Moon's apartment to
be crack cocaine and heroin. He further testified that "a lot of
drug dealers will use [a firearm] for protection or safety."
Detective Ross testified that he found a .357 revolver
under the mattress in the bedroom. Ross stated that Moon told him
there were drugs in a red box on the nightstand. During Ross's
testimony, the government introduced into evidence photographs of
the drugs and drug paraphernalia seized from Moon's bedroom. Ross
testified that these items were consistent with packaging drugs for
distribution, and that a photograph of the seized substances showed
cocaine and heroin packaged for sale.
-9-
2. Moon and Hendricks
Moon testified in his own defense that the gun found
under the mattress was not his, that he had never seen it in the
apartment, and that he would not allow a gun in his apartment. He
acknowledged that he had a history of drug use, which increased
when his girlfriend, Sherrica Hendricks, left him. After the
breakup with Hendricks, who moved out of the apartment in January
2011, several friends began coming to his apartment and using drugs
in his bedroom. Moon testified that his friends sometimes would
continue to use drugs in the bedroom after he had gone upstairs to
sleep on the couch in the living room, and one of his friends, "P,"
sometimes slept in the bedroom. During the week before he was
arrested, he "slept more on the couch." He reported that the day
before the search warrants were executed, he and his friends had
pooled their money to buy the heroin and cocaine that was found in
his bedroom.
Moon acknowledged ownership of the drug paraphernalia
found in the bedroom, including a sifter used for heroin, an
ashtray with a wooly blunt, a plate with a razor used to crush
crack, and a spoon used to "smash down the crack." He further
testified that the drugs found in his bedroom were more than he
would purchase just for himself, and that he and his friends had
purchased the larger bags of drugs because they intended to party
that night.
-10-
The government argued that Moon's testimony opened the
door to questions on cross-examination about his possible drug
dealing because he "has certainly been intimating . . . that the
drugs that he had were for personal use, not for distribution."
Specifically, the government sought to question Moon about the
transaction officers observed on the street just before executing
the search warrants, the controlled purchases on which the warrant
was based, and Moon's arrest six months earlier when Ross and
Murphy found five grams (a "finger") of heroin in Moon's car. Over
Moon's objection, the court allowed the questions. Among the
questions posed during the cross-examination, the government asked
Moon if he intended to sell the drugs found in his bedroom on the
day of the search, and whether he had sold drugs in the few days
prior to the search. Moon denied that he ever sold or intended to
sell drugs. In addition, Moon denied possessing a finger of
heroin, claiming that he had only "two or three" grams at the time
of his earlier arrest.
Hendricks testified that she never saw a gun in the
apartment during the two years she lived with Moon at 99 Ormond
Street, nor did she ever see Moon with a gun. She testified that
Moon had occasional visitors to the apartment, though on cross-
examination she recalled only a single instance in which Moon had
a visitor in the bedroom.
-11-
B. Introduction of Drug-Related Testimony
Moon argues that the district court abused its discretion
under Federal Rules of Evidence 404(b) and 403 in allowing
testimony about the drugs and drug paraphernalia found in his
bedroom. He complains that the drug evidence became the focus of
the trial, and that the government introduced it to convey the
impermissible message that, because Moon was a drug user, and
potentially a drug seller, he was the type of person to possess a
gun. He explicitly targets the officers' direct testimony and
appears to challenge as well the government's line of questioning
in cross-examining him.
Under Federal Rule of Evidence 404(b), evidence of a
"crime, wrong, or other act" may not be introduced at trial to
prove the defendant's propensity to commit the charged offense.
Fed. R. Evid. 404(b)(1). However, such wrongful-acts evidence "may
be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident." Id. at 404(b)(2). Even
if evidence fits within one of the Rule 404(b) categories and is
thus relevant and admissible, Rule 403 authorizes the trial court
to exclude the material if its probative value is substantially
outweighed by a danger of, inter alia, unfair prejudice. Fed. R.
Evid. 403. Evidence is excludable only if it is unfairly
prejudicial, meaning that it has "an undue tendency to suggest
-12-
decision on an improper basis." Fed. R. Evid. 403 advisory
committee's notes on 1972 proposed rules.
A district court's ruling that evidence may be admitted
consistently with both Rules 404(b) and 403 is reviewed for abuse
of discretion. United States v. DiRosa, 761 F.3d 144, 152-54 (1st
Cir. 2014). We afford "great deference to a district judge's
balancing of probative value versus unfair prejudice." United
States v. Breton, 740 F.3d 1, 14 (1st Cir. 2014).
We find no abuse of discretion in the district court's
allowance of the officers' testimony concerning the drugs and
related paraphernalia found in Moon's bedroom. That evidence was
relevant both to show Moon's control over the area where the gun
was found and to prove his involvement in drug trafficking, which
"provides a compelling motive for possessing the gun, namely, to
protect his drugs and drug money." United States v. Smith, 292
F.3d 90, 99 (1st Cir. 2002); see also United States v.
Torres-Rosario, 658 F.3d 110, 114 (1st Cir. 2011) (stating that
"the government was free to invite the jury to infer that
Torres–Rosario dealt in drugs" based on the discovery of drugs and
baggies in his bedroom, "furnishing a motive for him also to
possess a gun to protect them"); United States v. Weems, 322 F.3d
18, 25 (1st Cir. 2003) ("As in Smith, the evidence of drug dealing
at the house was relevant. It certainly gave Weems a motive to
have the gun on him.").
-13-
Moon asserts that the plethora of personal items found in
the bedroom, including his resume and prescription medication, made
control of the bedroom a non-issue and the introduction of the
highly prejudicial drug evidence therefore unnecessary. That
assertion would have more force if the drugs and related
paraphernalia were not independently relevant as evidence of drug
trafficking. The quantity of drugs found in the room -- two large
bags of heroin, plus the crack and heroin in the red box on the
nightstand -- together with equipment commonly used by drug
traffickers were enough to support admission of the evidence as
suggestive of drug dealing.
As for Rule 403 balancing of relevance and prejudice, the
court minimized the risk of prejudice by twice giving limiting
instructions to the jury. During Ross's testimony, the court
reminded the jury that Moon was not charged with any drug offense,
and stated that the testimony was being admitted for a limited
purpose related to the firearms charge, i.e., to show motive,
opportunity, intent, preparation, plan, knowledge, identity or
absence of mistake. The court also told the jurors they were "not
permitted to . . . conclude that because he committed a crime
related to drugs he has a propensity for committing crimes and,
therefore, committed the crime with which he is charged in this
case." The court included a similar instruction in its final
charge. Given these precautions, we see no reason to second-guess
-14-
the court's judgment that the evidence should be admitted. See
United States v. Gonyer, 761 F.3d 157, 164 (1st Cir. 2014) ("A
district court's weighing of the positive and negative effects of
specific evidence demands considerable respect, especially when, as
in this case, limiting instructions were deftly and timely
deployed." (internal quotation marks omitted)).
The court's allowance of the government's drug-related
cross-examination of Moon was likewise within its discretion.
Moon's testimony implied that the drugs and related paraphernalia
found in his room were for personal use.4 The government's
subsequent questioning about drug transactions was designed to
rebut the personal-use narrative and, in general, to undermine
Moon's credibility.5 The questions aiming to offset Moon's claim
of personal use -- and thereby stimulate an inference of drug
trafficking -- advanced the government's theory that the gun found
4
When questioned by his attorney, Moon admitted ownership of
the drug-related items found in his bedroom, including an ashtray
containing "pieces of the wooly blunt that I smoked," and two
plates: "[w]e used one plate when we was cutting up the coke, the
crack, another plate for the heroin."
5
For example, the prosecutor asked Moon a series of questions
about the three government-orchestrated controlled buys.
Specifically, he was asked, "so you're saying that no one called
you . . . to request that you sell heroin to them?" Moon denied
that anyone had. He next was asked if he had driven Sherrica's car
"to meet with someone to sell them heroin?" Again, Moon denied
that he had. Finally, the prosecutor asked: "[D]id you . . . any
time before February 1st of 2011, within a month, did you sell
anyone heroin in the streets of Boston?" Moon again responded,
"No."
-15-
under Moon's mattress was used "to protect his drugs and drug
money." Smith, 292 F.3d at 99. As noted, the propriety of
government reliance on that theory is well supported by our
precedent, and the district court thus properly exercised its
judgment to allow clarifying questions in response to Moon's direct
testimony. See, e.g., United States v. Tetioukhine, 725 F.3d 1, 10
(1st Cir. 2013).
C. Prior Conviction
Federal Rule of Evidence 609, inter alia, permits the
government to admit evidence of a defendant's prior felony
conviction, for impeachment purposes, if the conviction is less
than ten years old and its probative value outweighs its
prejudicial effect. See Fed. R. Evid. 609(a)(1)(B). As described
earlier, the district court allowed the government to introduce
three 2008 convictions and a 2001 robbery conviction. Challenging
on appeal only the government's use of the nearly ten-year-old
robbery conviction, Moon claims that the court erred in balancing
prejudice and probative value.
On the second day of trial, Moon's attorney renewed his
pretrial objection to the use of the robbery conviction on the
ground that it was "very close in nature to a weapons" charge and,
accordingly, the government should be prohibited from raising it.
In response, the government said that it would ask Moon "are you
the same person who was previously convicted of robbery in Suffolk
-16-
Superior Court on March 29, 2001?" In light of that limited
inquiry, the court ruled that the probative value of the prior
conviction outweighed the prejudicial effect of its introduction,
and the question was therefore permissible.
Knowing that he would be asked about the conviction on
cross-examination, Moon preemptively testified on direct that he
had been convicted of unarmed robbery in 2001. When his lawyer
asked him to explain the conviction, Moon provided his account of
the events:
This guy came in our neighborhood, he was
asking people to get him some drugs, can they
get him some drugs. He asked me; I told him I
could get it for him. So what I did was I went
and got a napkin, I didn't have any drugs, but
I wanted the money. I got a napkin, so I told
him the drugs were in the napkin, handed him
the napkin, got the money, and walked away. I
walked away, and I was surrounded by the
police. He turned out to be an undercover cop,
and I was convicted of robbery.
Following Moon's testimony, but before beginning its
cross-examination, the government argued that Moon had opened the
door to questions about the circumstances surrounding the robbery
conviction. The district court agreed,6 but said it would be
"listening carefully" to the prosecutor's questions to determine if
they were unduly prejudicial under Rule 403.
6
The court noted that "the government wouldn't have been able
to get into this issue had it not been for [Moon's] testimony," in
which he "proffered his version of facts for the underlying
conviction and was selective about what facts he addressed on
direct."
-17-
During its cross-examination, the government asked Moon
about the facts underlying the robbery conviction, including
whether he had gotten into a car with the officer, snatched money
from the officer's hand, told the officer, "I wasted enough time
with you, get out of here before you get hurt," and negotiated the
price of the heroin. The district court sustained Moon's
objection, however, to questions asking Moon if he had told the
officer he had a pistol with him during the robbery, ruling that
this was too "close to the line" given that Moon was facing a gun
charge in this case.
Although Moon invokes Rule 609 in asserting that the
evidence surrounding his 2001 robbery conviction was improperly
admitted, that rule is beside the point where, as here, the
challenged evidence was offered to contradict specific testimony.
A party can "open the door to evidence about prior
convictions . . . regardless of whether the conviction meets Rule
609's requirements." Tetioukhine, 725 F.3d at 9 (internal
quotation marks omitted). "A party may introduce evidence to
impeach a witness's specific testimony by contradiction," and
"[t]his principle applies to the admission of prior convictions."
Id. at 8-9.
By providing his own depiction of the robbery, Moon
opened the door to the government's cross-examination about the
events leading to the conviction. Moon's account had the potential
-18-
to "create[] a false impression that made the [underlying]
circumstances . . . relevant," United States v. Landry, 631 F.3d
597, 605 (1st Cir. 2011), and, hence, the court did not abuse its
discretion by allowing the government to question him about facts
inconsistent with his version of the events. See Tetioukhine, 725
F.3d at 10 ("Tetioukhine's repeated attempt[s] to minimize the
conduct for which he was convicted were more than sufficient to
open the door to further cross-examination on this subject."
(alteration in original) (internal quotation marks omitted)
(citation omitted)); Landry, 631 F.3d at 605 (finding no abuse of
discretion in admission of evidence to refute defendant's
misleading testimony).
D. Arresting Officer Testimony
Both pretrial and at trial, Moon sought to prevent
Detective Ross and Sergeant Detective Murphy from offering opinion
testimony that drug dealers typically keep firearms to protect
themselves and their drugs, and that the drugs seized in Moon's
apartment were heroin and cocaine.7 The district court admitted
this testimony as lay opinion evidence, citing our decision in
7
We note that Moon's objection to the officers' testimony
about the drugs found in his bedroom is largely undermined by his
own admission that the substances were heroin and cocaine. When
asked on cross-examination to identify the substances in a
photograph taken by the police, Moon said, "that's the coke we had
and the methadone pills that I was going to take." In explaining
another photograph, he stated: "That's heroin . . . . I think
it's, like, three grams, three and a half grams."
-19-
United States v. Valdivia, 680 F.3d 33 (1st Cir. 2012).8 We review
the admission of lay or expert testimony for abuse of discretion.
United States v. Diaz-Arias, 717 F.3d 1, 11 (1st Cir. 2013);
Valdivia, 680 F.3d at 50.
The district court correctly concluded that admission of
the offered testimony is consistent with our precedent as
articulated in Valdivia.9 Federal Rule of Evidence 701 provides:
8
The district court stated:
Finally, there was an objection to allowing the
detective, I believe it was Detective Ross, to testify
about whether or not drug distributors or drug dealers
often possess firearms. And there was an objection under
[Rule] 702, that there wasn't a proper foundation laid
for that expert testimony. I would say that I don't think
the admission of that testimony was improper. The 1st
Circuit had addressed this issue in [Valdivia]. I don't
believe that that case requires the same showing for the
testimony that was proffered that is required for experts
squarely offered under [Rule] 702. And even if [Rule] 702
did apply, I think that testimony was properly admitted.
9
Speaking only for myself, I adhere to the view set forth in
my concurrence in Valdivia that the admission of certain types of
opinion testimony of police officers as lay opinion is contrary to
the requirements of Rules 701 and 702:
[T]he explicit language of Rule 702 sets forth a bright
line rule. If a witness has acquired "specialized
knowledge" on the basis of "knowledge, skill, experience,
training or education," and presents that knowledge to a
jury "in the form of an opinion or otherwise," that
witness is testifying as an expert witness, Fed. R. Evid.
702, who is subject to the disclosure requirements for
expert testimony.
Valdivia, 680 F.3d at 60 (Lipez, J., concurring). Our court's
position that police testimony under Rule 702 is lay opinion
testimony under Rule 701 "has created in some of our precedents an
unwarranted police exception from the requirements applicable to
-20-
If a witness is not testifying as an expert,
testimony in the form of an opinion is limited
to one that is: (a) rationally based on the
witness's perception; (b) helpful to clearly
understanding the witness's testimony or to
determining a fact in issue; and (c) not based
on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
In Valdivia, we upheld, as lay opinion under Rule 701, the
admission of a law enforcement agent's testimony describing the use
of cell phones by drug traffickers, citing the agent's
"particularized knowledge" derived from his experience in past drug
investigations. See 680 F.3d at 50-51 (quoting Fed. R. Evid. 701,
advisory committee's note to 2000 amendment).
Here, the officers also had the requisite knowledge of
drug-dealing practices. See id. at 50. Ross, a 27-year veteran of
the BPD, testified that he had experience in identifying controlled
substances, particularly from occasions when he purchased drugs on
the streets of Boston. Murphy, a 33-year veteran of the BPD,
testified that he had made a minimum of 5,000 drug arrests during
the course of his career, and that "a lot of drug dealers will use
[a firearm] for protection or safety." The officers' testimony,
based on their extensive experience, that the substances appeared
to be heroin and crack cocaine, and that drug dealers often possess
firearms, was, according to our precedent, thus properly admitted
expert testimony." Id. at 61. Our law on this point is at odds
with virtually every other circuit. Id. at 56 n.16 (collecting
cases). I continue to believe that our law should be changed
through an appropriate en banc proceeding.
-21-
under Rule 701. See United States v. Santana, 342 F.3d 60, 68-69
(1st Cir. 2003) (finding no abuse of discretion in admitting
agent's lay opinion testimony that he could smell marijuana during
the search of a home); United States v. Maher, 454 F.3d 13, 24 (1st
Cir. 2006) (holding that an officer's testimony that based on his
experience certain post-it notes were likely drug orders and the
number "4" likely referred to a quantity of the drug found by law
enforcement "did not cross the line to become expert testimony")
(internal citation omitted); United States v. Paiva, 892 F.2d 148,
157 (1st Cir. 1989) (finding that past experience and personal
knowledge may qualify a lay witness to identify drugs).10
E. The Existence and Identity of the Informant
Moon argues that the district court violated his right of
confrontation and his due process rights when it denied his request
pretrial, during trial, and in his new trial motion, for disclosure
of the identity of the CI and the details of the CI's activity, or,
in the alternative, a review by the court in camera of the
10
The district court observed that even if the officer
testimony was not lay opinion testimony, it could have been
admitted as expert testimony. That statement would be correct so
long as the pretrial requirements for the admission of expert
testimony were met by the government. If the government had
attempted to introduce this testimony as expert testimony, it would
have had to disclose the identity of the officers as well as,
"among other things, the subject matter on which the witness is
expected to testify and a summary of the facts and opinions to
which the witness is expected to testify." Valdivia, 680 F.3d at
60 n.21 (Lipez, J., concurring) (citing Fed. R. Civ. P. 26(2) and
Fed. R. Crim. P. 16(a)(1)(G), (b)(1)(C)).
-22-
documents supporting the application for the search warrants.
Relatedly, he argues that the district court erred in refusing to
convene a Franks hearing to probe the veracity of the search
warrant affidavit. Moon contends that he was unfairly prejudiced
by his inability to review the information allegedly supplied by
the CI and argues that, at a minimum, the court should have
examined the supporting materials to determine whether the
informant in fact existed and engaged in controlled buys with him.
1. Pretrial Requests
We note first that Moon waived his objection to the
district court's refusal to order pretrial disclosure of the
informant's identity. In his renewed motion for discovery, Moon
stated that he did "not seek the identity of the informant, but
only the type of information – promises, rewards, and inducements,
convictions, pending cases – that would tend to show
unreliability." Similarly, in his motion for in camera review,
Moon stated that he was not seeking disclosure of the CI's
identity, but urged the court to verify the informant's existence
and the facts of the controlled buys. These affirmative statements
constitute an "intentional relinquishment" of any claim of error in
the district court's pretrial denial of his request for disclosure
of the CI's identity. United States v. Millan-Isaac, 749 F.3d 57,
63 (1st Cir. 2014).
-23-
Moon has consistently argued, however, that the facts
alleged by the government detailing the controlled buys should be
examined and evaluated, demanding that such inquiry be performed in
a hearing pursuant to Franks and through in camera review of the
materials supporting the warrant affidavit. On appeal, he argues
that the district court erred in rebuffing both of these
procedures. He contends that the court should have demanded
reliable proof that the CI existed and the controlled buys in fact
occurred.
Under Franks, a defendant may overcome the presumption of
validity that surrounds an affidavit in support of a search warrant
and obtain an evidentiary hearing if he "makes a substantial
preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of probable
cause." Franks, 438 U.S. at 155-56; see also United States v.
McLellan, 792 F.3d 200, 208-09 (1st Cir. 2015). We review for
clear error a district court's denial of a Franks hearing.
McLellan, 792 F.3d at 208.
Moon attempted to discredit the affidavit's report of the
controlled buys by establishing that he was not in Boston on the
one date reported with some specificity in the application, i.e.,
within "the last seventy-two hours." In his own affidavit, Moon
-24-
stated that he did not sell heroin to anyone in the Boston area
during the three days preceding and including February 4, 2011, the
date on which the search warrants issued, and that he had spent
"most of my time" in Worcester, Massachusetts, during the first
week of February 2011. He argues that his affidavit, together with
records from the American Automobile Association ("AAA") showing a
request for a tow of the green Mercedes identified in the warrant
application, establish that "he was not in town during at least one
of the incidents contained in the search warrant."
We find no clear error in the district court's judgment
that Moon's proffered evidence did not amount to a "substantial"
showing of falsity. The AAA records show only that a call was
placed from Worcester on February 4, 2011 -- the date on which the
search warrants were sought -- for a tow of the green Mercedes.
Those records do not establish that Moon was out of town for the
full 72 hours (or any substantial part of that period) before
officers filed the warrant application. Likewise, Moon's assertion
in his affidavit that he was spending "most" of his time in
Worcester during the relevant period does not undermine the
allegation in the affidavit that one of the controlled buys of
heroin occurred in Boston within 72 hours of the February 4
application. Worcester and Boston are approximately 45 miles
-25-
apart,11 and Moon easily could have been in both cities on the same
day.
The factual gap in Moon's attempt to show the affidavit's
inaccuracy -- and thus its knowing or reckless falsity -- cannot be
filled by his own denial that he sold heroin in Boston within the
relevant period. That disclaimer constitutes no more than a
conclusory and unsupported allegation that falls well short of the
"substantial preliminary showing" necessary to justify a Franks
hearing. See United States v. Southard, 700 F.2d 1, 10 (1st Cir.
1983) (upholding rejection of Franks hearing where district court
found appellants' flat denials of gambling-related
conversations insufficient to meet the "substantial preliminary
showing" requirement).
Moon's challenge to the district court's denial of an in
camera examination of the evidence supporting the warrant
application fails for similar reasons. In a case such as this,
where the defendant questions the truthfulness of an affidavit but
has not made the "substantial preliminary showing" required by
Franks, the district court may hold an in camera proceeding to
probe the veracity of the officer and, if necessary, the informant.
11
We take judicial notice of this distance. See Fed. R. Evid.
201(b) (allowing a court to take judicial notice of a fact "not
subject to reasonable dispute because it . . . can be accurately
and readily determined from sources whose accuracy cannot
reasonably be questioned"); see also United States v. Fernandez,
722 F.3d 1, 6 n.1 (1st Cir. 2013).
-26-
See United States v. Manning, 79 F.3d 212, 220 (1st Cir. 1996).
The judgment of whether to do so, however, is left to the court's
discretion. Id. As described above, Moon has failed to make any
showing that in camera review would reveal falsity or any evidence
of value to his defense. Hence, we find no abuse of discretion in
the court's rejection of in camera review. See id. at 221 ("Given
the tenuous basis for [the defendant's] challenge to [the
detective/affiant's] veracity, the district court's denial of
[defendant's] request for an in camera review was well within its
discretion.").
2. Mid-trial and Post-trial Requests
Moon revisited the CI identity issue during the trial and
in his post-verdict motion for new trial, arguing that the
government's cross-examination concerning his alleged drug
trafficking entitled him to disclosure of the informant's identity
and related details. When the government announced its planned
line of questioning about the controlled buys, see supra Section
II.B, Moon noted that those transactions were disputed.
Referencing Federal Rule of Evidence 404(b)(2),12 he stated that,
12
Pursuant to Federal Rule of Evidence 404(b), evidence of a
defendant's "crime, wrong, or other act . . . may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack
of accident. On request by a defendant in a criminal case, the
prosecutor must: (A) provide reasonable notice of the general
nature of any such evidence that the prosecutor intends to offer at
trial; and (B) do so before trial -- or during trial if the court,
for good cause, excuses lack of pretrial notice." Fed. R. Evid.
-27-
"if the government is allowed to go into any alleged prior
transaction, I'm entitled to notice and disclosure of those so I
can prepare to rebut them." The court refused to order disclosure
of the details of the controlled buys and, as described above,
allowed the questioning.
In a motion for new trial after the guilty verdict, Moon
renewed his objection to the court's failure to order disclosure of
the CI's identity or other information about the controlled buys,
arguing that he was unfairly denied the ability "to negate the
insinuations made by the government on cross-examination that Mr.
Moon was involved in multiple drug transactions prior to his
arrest." In denying the motion, the district court stated that the
government was not required to disclose the details concerning the
CI because it did not rely at trial on information provided by the
informant. On appeal, Moon reiterates his contention that his
defense was compromised by the court's refusal to order disclosure
of the CI's identity and details of the alleged buys.
The government has a qualified privilege to withhold the
identity of people who provide law enforcement officers information
about criminal acts. See Roviaro v. United States, 353 U.S. 53,
59-60 (1957); United States v. Mills, 710 F.3d 5, 13 (1st Cir.
2013). When a defendant requests disclosure of a confidential
informant's identity, the court must determine whether that
404.
-28-
information is "relevant and helpful to the defense" or "essential
to a fair determination of a ca[se]." Roviaro, 353 U.S. at 60-61.
The court also must balance the individual's "right to
prepare . . . his defense against the public interest in acquiring
needed information and the informant's stake in confidentiality."
Mills, 710 F.3d at 14 (quoting United States v. Perez, 299 F.3d 1,
4 (1st Cir. 2002)). The burden is on the defendant to show that
"disclosure is essential for an adequate defense," id., and the
inquiry is case-specific: "Whether a proper balance renders
nondisclosure erroneous must . . . tak[e] into consideration the
crime charged, the possible defenses, the possible significance of
the informer's testimony, and other relevant factors," Roviaro, 353
U.S. at 62.
The district court's judgment not to order disclosure of
a confidential informant is reviewed for abuse of discretion.
United States v. Robinson, 144 F.3d 104, 106 (1st Cir. 1998). We
are satisfied that no such abuse occurred in this case. Moon's
contention is that, without the CI's identity and some detail about
the transactions (e.g., dates and locations), he could not
challenge the government's depiction of him as a drug dealer. The
government, however, offered no testimony at trial about the
controlled buys, either in its case-in-chief or to rebut Moon's
denials on cross-examination of his involvement in drug
trafficking. The government referred to the transactions only by
-29-
asking Moon, during cross-examination, about his conduct. See
supra n.5.
Moon does not explain how he would have used the CI
information if the court had ordered it disclosed at that point in
the trial. Cf. Mills, 710 F.3d at 14 ("[A] defendant must spell
out how an informer's testimony would help whatever defense theory
he pins his hopes on."). In addition, although Moon's alleged drug
trafficking was circumstantially useful to the government, it was
not the crime before the jury. See id. at 14 (noting the
importance of disclosure if "the informant is the only person other
than the defendant who has firsthand knowledge of the acts
underlying the crime charged" or "the only one able to amplify or
contradict the testimony of a government witness"). The district
court did not abuse its discretion in concluding that Moon had not
met his heavy burden to show that disclosure was "essential for an
adequate defense." Id. at 14.
F. Sentencing Under Armed Career Criminal Act
The Probation Office determined that Moon was subject to
sentencing as an armed career criminal based on five prior
convictions for violent felonies. Moon's total offense level of
34, when combined with his Criminal History Category of VI,
produced a Guidelines sentencing range of 262 to 327 months. The
court sentenced Moon to 220 months' imprisonment and two years of
supervised release.
-30-
Moon argues that the district court's application of the
ACCA violated his right to a jury trial because his prior
qualifying convictions were not charged in the indictment or proven
to a jury beyond a reasonable doubt. He contends that his
predicate convictions are facts that increase the mandatory minimum
sentence, and hence constitute "elements" that must have been
submitted to the jury. See Alleyne v. United States, 133 S. Ct.
2151 (2013). Moon's contention is without merit. Under now well
established law, the fact of a prior conviction need not be proven
to a jury beyond a reasonable doubt for sentencing purposes, even
when it exposes a defendant to a higher sentence. See
Almendarez-Torres v. United States, 523 U.S. 224, 239 (1998);
United States v. Almenas, 553 F.3d 27, 31 n.3 (1st Cir. 2009).
Accordingly, the district court did not deny Moon his right to a
jury trial when it applied the ACCA enhancement.13
13
On July 7, 2015, Moon submitted a Motion for Leave to File
Supplemental Briefing to address the impact of Johnson v. United
States, 135 S. Ct. 2551 (2015), which struck down the residual
clause of the ACCA as unconstitutionally vague. In his motion,
Moon argued that but for the residual clause of the ACCA, he would
not have qualified as an armed career criminal. We denied the
motion. Moon has the requisite number of predicate convictions
that qualify as violent felonies under the "force or elements
clause" of the ACCA, and the residual clause is thus not implicated
in this case.
-31-
III.
Having considered each of Moon's claims of error, and
finding no basis for disturbing either his conviction or sentence,
we affirm the judgment of the district court.
So ordered.
-32-