United States v. Moore

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

7-14-2004

USA v. Moore
Precedential or Non-Precedential: Precedential

Docket No. 03-2698

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 PRECEDENTIAL Harrisburg, PA 17101

UNITED STATES COURT OF Attorney for Appellant
APPEALS
FOR THE THIRD CIRCUIT
James T. Clancy, Esq. (Argued)
Office of the United States Attorney
No. 03-2698 Federal Building
228 Walnut Street
P.O. Box 11754
UNITED STATES OF AMERICA Harrisburg, PA 17108

v. Attorney for Appellee

DARRICK MOORE,
Appellant
OPINION OF THE COURT

APPEAL FROM THE UNITED
STATES DISTRICT COURT BARRY, Circuit Judge
FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA We begin with the closing argument
D.C. Crim. No. 02-cr-00097 of the prosecutor:
District Judge: The Honorable Yvette
Kane [S]ta ndin g here
knowing what date
[September 10, 2002] today
Argued: February 24, 2004 is I am very, very reluctant
to use the term I’m going to
use, but, frankly, I think this
Before: RENDELL, BARRY, and defendant warrants that
ROSENN, Circuit Judges term, and that term is
terrorist.
There are many
(Opinion Filed: July 14, 2004) different kinds of terrorists.
We all know too well the
kinds of terrorists that
caused the attacks of the
James J. West, Esq. (Argued) anniversary so-to-speak we
West Long will mark tomorrow. But
105 North Front Street there are very different
Suite 205 kinds of terrorists, and I
 think this defendant is one verdict after only twenty-eight minutes of
of them. deliberations.
As you heard the
evidence today, I think this Before placing our stamp of
evidence can show you that approval on the jury’s verdict, however,
he inflicted terror upon we must consider the issues that Moore
Belinda Newcomer and her raises on appeal, and that the government,
fa m ily, up on Brittany defense counsel, 1 and the District Court
New comer and upon simply ignored: Moore was not charged
Belinda’s son Brandon with forcing children or anyone else to
Newcomer. deal drugs. Neither was he charged with
You heard testimony assault. Nor drug possession. Nor child
that he was forcing kids to abuse. Nor terrorism. In fact, Moore was
do drug transactions for not on trial for anything he may have done
him. What kind of person to Belinda or her family.
does that?
Moore was on trial for arson, in
173a. violation of 18 U.S.C. § 844(i), and for
possession of a firearm by a previously
The kind of person that does that, convicted felon, in violation of 18 U.S.C.
is, of course, a very bad person. Indeed, §§ 922(g) and 924(a)(2). Any observer with
the government’s hyperbolic closing even an elemental understanding of the
argument crowned its trial strategy of Federal Rules of Evidence should have
pillorying defendant Darrick Moore before wondered how the wide-ranging testimony
the jury. This fact, and fact it be, is best about drugs, domestic violence, and child
exemplified by the prosecutor’s direct abuse was appropriate in an arson and gun
examination of the government’s key possession trial. Moreover, what
witness, Belinda Newcomer, through justification could the prosecutor have had
whom he elicited the many ways in which for raising the specter of September 11th
Moore was physically violent, seriously and calling M oore a terrorist? We cannot
injuring both her and her son. It was also conceive of any. We will reverse the
seen when the prosecutor, on redirect judgment and sentence, and grant a new
examination of Belinda’s thirteen year old trial.
daughter, Brittany, elicited testimony that I. Background
Moore punched, kicked and choked her
after she refused to sell drugs for him.
Given all of this, could anyone disagree
with the government that Moore was a bad 1
Different counsel was appointed to
man if not some species of “terrorist”?
represent Moore on this appeal, and has
Surely the jury did not; it returned a guilty
ably done so.

2
 On Christmas Eve of 2001, a fire objection. The prosecutor then proceeded
occurred at an apartment building located to elicit from Brittany that Moore had
at 455 North Beaver Street in York, punched, kicked, and choked her when she
Pennsylvania, and a boy was injured. In refused to sell drugs. On re-cross, Brittany
mid-February of 2002, Belinda Newcomer, offered that Moore not only wanted her to
Moore’s ex-girlfriend, came forward to sell drugs for him, but also wanted her
identify Moore as the person responsible mother and brother to do so.
for the fire. In April, in the U.S. District
Court for the Middle District of Belinda Newcomer took the stand
Pennsylvania, Moore was charged in a two after her daughter. Belinda began her
count indictment with arson resulting in testimony by describing the nature of her
personal injury and with possession of a relationship with Moore. She testified that
firearm by a convicted felon. he was in anger management classes; that
her relationship with him was “very
Brittany Newcomer, Belinda’s violent”; that he was a “very hostile man”;
daughter, was the first of four witnesses to that he was a habitual drug user; that he
testify for the government. On direct threw her down a flight of stairs with the
examination, Brittany testified that she saw result that she was hospitalized in critical
Moore with a gun when he lived with her condition; that he repeatedly punched her
mother. She further testified that Moore in the face; that he severely beat her son,
warned her not to tell her mother about the cracking three of his ribs and leaving scars
gun or he would hurt her. On cross- on his face and neck; that her son was
examination, defense counsel asked taken by Child Services for fear that he
Brittany why she had waited so long would again be hurt by Moore; and that
before telling her mother about the gun. she feared for her life and the lives of her
Brittany replied that she feared being hurt children. Defense counsel at no point
by Moore. On re-direct, the prosecutor objected and the District Court did not
asked Brittany if Moore had hurt her in the intervene.
past. Brittany responded that he had hurt
her because she had refused to sell drugs Having set the scene with her
for him. Presumably on the ground that description of Moore’s violent behavior,
Moore had now been called a drug dealer Belinda turned to the events which took
who used children to sell his drugs, place on Christmas Eve. She testified that
defense counsel objected: “[t]his is far Moore awoke her (the two were at that
beyond cross-examination, and it’s beyond time living together) and asked her to drive
the scope of this trial.” The prosecutor him to a location he did not then disclose.
countered only that the defense had made She agreed to do so. Moore first directed
an issue of why Brittany had waited so Belinda to a gas station, where he filled a
long to tell her mother about the gun. The red plastic gas can with fuel, and they then
District Court agreed, and overruled the drove to 455 North Beaver Street. Moore

3
got out of the car with the gas can, calling Moore a terrorist. Again, no
instructed Belinda to stay in the car, and objection was made by defense counsel.
disappeared behind the building. Minutes
later, he came running back, smelling of The Court then instructed the jury,
gasoline, and instructed her to drive them and the verdict was returned in twenty-
away. As they drove off, Moore remarked eight minutes.
to Belinda that he had finally gotten even
with “someone he had been angry at and II. Discussion
that no one is going to ‘f’ with ‘D.’”
Moore urges us to overturn his
Two other witnesses took the stand. conviction on two grounds.2 First, he
Melissa Strunk Layer, who was then contends that the District Court improperly
incarcerated on drug charges, testified that admitted the testimony of Brittany and
she knew Moore from dealing in crack Belinda Newcomer concerning his alleged
cocaine. She had not seen Moore since prior bad acts, in violation of Federal Rule
having a disagreement with him about the of Evidence 404(b).3 Second, he contends
purchase of $20 of crack. Presumably, it
was this dispute that motivated the arson: 2
on Christmas Eve of 2001, Melissa Strunk Moore filed a timely notice of appeal.
Layer lived at 455 Beaver St., the location We have jurisdiction under 28 U.S.C. §
of the fire. 1291 and 18 U.S.C. § 3742.
3
Finally, York City Police Officer
Federal Rule of Evidence 404(b) provides:
Troy Cromer offered into evidence a gun
retrieved by police from Moore’s former
Other crimes, wrongs, or
place of employment, a gun that fit the
acts. Evidence of other
description given by Belinda and Brittany
crimes, wrongs, or acts is
of the gun to have been in Moore’s
not admissible to prove the
possession. Officer Cromer–qualified at
character of a person in
trial as an expert investigator of the origins
order to show action in
and causes of fire–also testified that the
conformity therewith. It
fire was set intentionally, and that a red
may, however, be
plastic gas can was recovered from the
a d m i s s i b l e f o r o t h er
scene.
purposes, such as proof of
motive, opportunity, intent,
The government rested its case, and
pre p aration, plan,
Moore followed suit without calling any
knowledge, identity, or
witnesses. Closing arguments were then
absence of mistake or
presented to the jury. The prosecutor
accident, provided that upon
launched into his closing argument by
(continued...)

4
that the prosecutor’s closing argument only if (4) the error seriously affects the
unfairly prejudiced him. fairness, integrity, or public reputation of
judicial proceedings.” Johnson v. United
A. Standard of Review States, 520 U.S. 461, 467 (1997) (citations
and quotation marks omitted). See also
The Federal Rules of Evidence United States v. Plotts, 359 F.3d 247, 249
require a timely and specific objection to (3d Cir. 2004) (“Under plain error review,
evidence erroneously admitted. Fed. R. we may grant relief if (1) the District Court
Evid. 103(a)(1). Where an objection is committed an error, (2) it was plain, and
properly made, we review a district court’s (3) it affected substantial rights of the
ruling for abuse of discretion. United defendant.”) (citation and quotation marks
States v. Givan, 320 F.3d 452, 463 (3d Cir. omitted).
2003). Where, however, a party fails to
object in a timely fashion or fails to make Similarly, a failure to sustain an
a specific objection, our review is for plain objection to a prosecutor’s closing
error only. United States v. Boone, 279 argument is typically reviewed for abuse
F.3d 163, 188 (3d Cir. 2002). See also of discretion. United States v. Molina-
United States v. Sandini, 803 F.2d 123, Guevera, 96 F.3d 698, 703 (3d Cir. 1996).
126 (3d Cir. 1986) (holding that failure to But, again, defense counsel never said a
object with specificity does not preserve a word when his client was likened to one of
Rule 404(b) issue for appeal). It is well- the September 11th terrorists, nor did the
settled that to establish plain error, a District Court. And so, again, the standard
defendant must show “(1) error, (2) that is of review is plain error. United States v.
plain, and (3) that affects substantial Tiller, 302 F.3d 98, 105 (3d Cir. 2002).
rights. If all three conditions are met, an
appellate court may then exercise its B. Plain Error Pervaded the Trial
discretion to notice a forfeited error, but
Inadmissible evidence and highly
inflammatory statements came rolling in
3 unimpeded at Moore’s trial, without any
(...continued)
hesitation by the prosecutor, complaint by
request by the accused, the
defense counsel, or correction by the
prosecution in a criminal
District Court. Indeed, at only one point
case shall provide
when irrelevant but enormously prejudicial
reasonable notice in advance
evidence and wholly inappropriate
of trial, or during trial if the
statements came before the jury did
court excuses pretrial notice
on good cause shown, of the
general nature of any such
evidence it intends to
introduce at trial.

5
defense counsel object, 4 and that objection When the instruction was given to
was not at all specific. His failure to the jury, however, the District Court stated
object, of course, did not relieve the that the testimony that Moore “committed
prosecutor of his duty to comply with the some acts other than the ones charged in
Federal Rules of Evidence and, even more the indictment” was permitted “only as
importantly, rules of fundamental fairness. background to the events at issue here,”
There was a serious breakdown here. and could be considered only for that
purpose and not as evidence that he
As for the evidence of M oore’s committed the crimes with which he was
“Other Crimes, Wrongs, or Acts,” i.e., the charged. Parenthetically, we are unaware
Rule 404(b) evidence, which came in of any case under Rule 404(b) that would
principally through Belinda and Brittany permit the use of the type of evidence seen
Newcomer, let us be quite clear. We are here as “background,” and the government
not reviewing the District Court’s decision has proffered none. At the conclusion of
to admit this evidence, because the the charge, the prosecutor asked the
evidence came in bereft of any motion to District Court to further instruct the jury,
admit; bereft of any prior notification of as the government puts it here, that “many
the general nature of the Rule 404(b) of [Moore’s] statements and actions
evidence the government intended to provided proof of motive for the arson.”
introduce; bereft of any objection by Appellee’s Br. at 11-12. Defense counsel,
defense counsel; and bereft of any exercise albeit “reluctantly,” agreed, and the
of control on the part of the District Court. District Court so instructed the jury.
Indeed, Rule 404(b) never once came up
during the course of trial until the District Putting aside the virtual silence as
Court sua sponte (because neither defense to Rule 404(b) during the course of trial, in
counsel nor the government had submitted order to be admissible under 404(b), “(1)
a proposed jury instruction as to 404(b)), the evidence must have a proper purpose
asked during the charge conference under Rule 404(b); (2) it must be relevant
whether there was any need to instruct the under Rule 402; (3) its probative value
jury regarding M oore’s “prior crimes or must outweigh its potential for unfair
bad acts.” Counsel both agreed that that prejudicial effect under Rule 403; and (4)
would be appropriate. the Court must charge the jury to consider
the evidence only for the limited purpose
for which it is admitted.” United States v.
Vega, 285 F.3d 256, 261 (3d Cir. 2002)
4 (citing, among others, Huddleston v.
The sole objection, difficult as it may
United States, 485 U.S. 681, 691-92
be to believe, was during Brittany’s re-
(1988)). The evidence here, at least that
direct, to wit: “This is far beyond cross
examination, and it’s beyond the scope of
this trial.” 30a.

6
evidence elicited from Belinda,5 fails each “there are very different kinds of terrorists,
and every one of these requirements. and I think this defendant is one of them.”
Rather, what is crystal clear is that the Why? Because “he inflicted terror upon
evidence came in for one reason and one Belinda Newcomer and her family, upon
reason only: to demonstrate Moore’s Brittany Newcomer and upon Belinda’s
propensity to act in a particular manner, son Brandon Newcomer. . . . [H]e was
i.e., to be a very violent man, whose forcing kids to do drug transactions for
violence made the arson and the gun him. What kind of person does that?” The
possession more likely. Admitting prosecutor marshaled the most damning of
evidence of other bad acts for this purpose the 404(b) evidence and emphasized it to
is, of course, prohibited. See, e.g., Ansell the jury. Why should the jury convict?
v. Green Acres Contr. Co, 347 F.3d 515, Because, he explained, of what Moore did
520 (3d Cir. 2003) (“Rule 404(b) . . . to the Newcomers. He is, in a nutshell, a
prohibits the admission of other acts bad man who should be stopped at all
evidence for the purpose of showing that costs.
an individual has a propensity or
disposition to act in a particular manner.”). Moore was not, of course, on trial
for anything he did to the Newcomers.
Were there any doubt that admitting But yet again, there was no objection from
evidence of the numerous other bad acts defense counsel, and the District Court did
alleged to have been committed by Moore not intervene. Indeed, the Court, in the
would alone require reversal, the course of denying Moore’s motion for a
compounding effect of the prosecutor’s new trial based on the prosecutorial
inflammatory closing argument forecloses misconduct inherent in the closing
any argument that reversal is not argument, remarked:
warranted. Thus, on the eve of the one
year anniversary of the September 11th [T]he government produced
terrorist attacks, the prosecutor called ample evidence which, if
Moore a terrorist. No, said the prosecutor, believed by the jury, would
Moore was not one of those terrorists, but support [the prosecutor’s]
argument that Defendant
used terror to coerce [and
5 the] characterization of
Given the prejudicial nature of the
Defendant as one who used
testimony elicited from Belinda on direct
terror to coerce was within
examination, we do not pause to also
a ccepta ble b o unds o f
discuss the challenged portion of
advocacy for conclusions
Brittany’s testimony nor to determine
the jury could adopt from
whether defense counsel opened the door
the evidence presented.
to the purported rehabilitation of Brittany
that followed.

7
But the evidence that the Court found of Evidence are clear and unambiguous on
“ a c c e p t ab l e ” w a s p r e j u d i c ia l , this matter: irrelevant and prejudicial
administering the death blow to the closing evidence is inadmissible. The evidence at
argument, which tracked that evidence. issue here–Moore’s alleged violence, drug
use, and general criminal proclivity–was
We have reversed convictions highly prejudicial and wholly irrelevant to
where “[t]he object, or at least effect, of the arson and gun possession charges he
this disproportionate emphasis by the faced. Second, the error was plain,
prosecution . . . was to portray [the stigmatizing M oore for b ehav ior
defendant] as . . . violence-prone . . . [and] unconnected to those charges. Finally, we
a danger to society and who needed to be are certain that the error affected M oore’s
removed for the protection of the public.” substantial rights. We cannot know, given
United States v. Himelwright, 42 F.3d 777, the evidence that came in, whether Moore
786 (3d Cir. 1994). In Himelwright, was convicted because the jury believed
although operating under an abuse of him to be an arsonist and the illegal
discretion standard of review, we reversed possessor of a gun, or because it thought
a conviction due to concerns that the him to be a violent and dangerous man, a
government’s emph asis on 404 (b) “terrorist” of sorts. We are inclined to
evidence in its closing argument tainted believe the latter. Such uncertainty in the
the trial in two regards: “First, it had the face of plain error “seriously affect[s] the
potential for frightening the jury into fairness, integrity or public reputation of
ignoring evidence that otherwise might judicial proceedings.” United States v.
have raised a reasonable doubt . . . . Atkinson, 297 U.S. 157, 160 (1936). See
Second, if the jury was persuaded that [the generally United States v. Olano, 507 U.S.
defe ndan t] was violence-prone by 725, 734-36 (1993) (discussing plain
character, it might have inferred that he error).
intended violence in this particular
instance. That inference is precisely what III. Conclusion
Rule 404(b) prohibits.” Himelwright, 42
F.3d at 786 n.8. See also United States v. Whether we apply the constitutional
Morley, 199 F.3d 129, 137-38 (3d Cir. harmless error doctrine that requires a
1999) (“This frontal assault upon the showing by the government that the error
defendant’s character is simply not was harmless beyond a reasonable doubt
appropriate under our system of laws, and or the non-constitutional harmless error
the trial court abused its discretion in doctrine that requires a showing that it is
admitting it.”). Plain error was committed highly probable the error did not contribute
here. to the judgment, see Molina-Guevara, 96
F.3d at 703, we conclude that singly or in
First, there can be no doubt that combination, the admission of the Rule
error was committed. The Federal Rules 404(b) evidence and the prosecutor’s

8
closing argument require that the judgment this testimony was not overshadowed by
and sentence be reversed for plain error, overwhelming other evidence of Moore’s
and the case remanded to the District guilt; in fact, the other substantive
Court with directions to grant Moore a evidence related to the crimes that were
new trial. relevant at trial was relatively thin,
consisting primarily of Belinda’s
RENDELL, Circuit Judge, Concurring. testimony and the identification of a red
I agree with the view that plain gas can. Accordingly, the trial judge’s
error occurred here by virtue of the failure to act amounts to plain error in
admission of evidence that villainized large measure due to the predominance of
Moore based on prior bad conduct that was the problematic evidence that was
totally unrelated to the offenses charged. presented to the jury.
I write to decry situations in which the While a trial judge should not let
deficient performances of both the this happen, it is far easier for us to say so
prosecutor and defense counsel lead to a from our vantage point, with the twenty-
predicament like the one faced by the trial twenty hindsight that we enjoy on appeal,
judge here, namely, when such evidence is than it is for the judge to determine mid-
improperly presented by the prosecution, trial at what point enough is enough. It
and when defense counsel improperly fails would be a far better thing for counsel –
to object. While I agree that the trial judge prosecution and defense alike – not to put
should have taken action here based on the judges into this predicament in the first
exceptionally egregious nature of the instance, by adhering and policing
violations of Rule 404(b), nonetheless, in adherence to the Rules of Evidence. Here,
typical cases trial judges instinctively, and counsel utterly and inexplicably failed to
usually quite properly, let the adversary do so.
process unfold. It is understandable that
judges are inclined to leave evidentiary
issues to the attorneys to challenge or not,
as they see fit, because ours is essentially
an adversary system, and judicial
interference can have tactical implications.
The instant situation, however,
differs in degree from a normal case. The
sheer heft of the truly damaging and
irrelevant conduct, catalogued in the
majority opinion, quite probably diverted
the jury’s attention from the relevant issues
of proof. There was not just one error;
there were strings of testimony focused on
inadmissible and irrelevant prior acts. And

9