United States v. Moore
639 F.3d 443
8th Cir.2011Background
- Moore was convicted by jury of conspiracy to distribute crack cocaine and cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A).
- Indictment charged conspiracy to distribute drugs between June 1, 2005, and March 31, 2007; Moore pleaded not guilty and trial proceeded.
- Fourteen witnesses testified; most had prior federal convictions and testified under plea agreements with cooperation provisions.
- Witnesses claimed Moore distributed more than 500 grams of crack cocaine and more than 700 grams of cocaine; Evans testified he bought crack from Moore about a year after the period alleged.
- Government introduced rap recordings showing Moore’s persona and references to drugs; defense argued lyrics were art, not facts.
- Moore testified that he did not participate in distribution and that witnesses lied; the jury found him guilty and he was sentenced to 292 months.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prosecutorial misconduct claim | Moore alleges a broad conspiracy to secure indictment and falsified reports. | Inconsistent witness statements show credibility issues, not falsified reports. | No prosecutorial misconduct; inconsistencies do not prove falsification. |
| Admissibility of Evans's testimony under 404(b) and variance | Evans's purchase occurred outside indicted period; evidence prejudicial and outside scope. | Variance harmless; acts occurred within limitations and within indictment notice. | Variance harmless; Evans's testimony admissible as part of conspiracy evidence; 404(b) not applicable. |
| Admissibility of rap recordings | Recordings are improper character evidence under 404(b). | Recordings admissible to show knowledge and motive; probative value outweighs prejudice. | Admissible; even if 404(b) applies, admission did not prejudice substantial rights; not plain error. |
| Ineffective assistance of counsel on direct appeal | Counsel failed to interview/present defense witnesses and obtain grand jury evidence. | Claims plain on record; should be resolved on collateral review, not direct appeal. | Remanded for collateral review; not resolved on direct appeal. |
Key Cases Cited
- United States v. West, 612 F.3d 993 (8th Cir. 2010) (inconsistencies do not prove falsified testimony)
- United States v. Buchanan, 574 F.3d 554 (8th Cir. 2009) (variance between indictment and proof; harmless if charge is apprised)
- United States v. Stuckey, 220 F.3d 976 (8th Cir. 2000) (time frame not an element of conspiracy charge)
- United States v. Chavez-Alvarez, 594 F.3d 1062 (8th Cir. 2010) (elements of drug distribution conspiracy)
- United States v. Ghant, 339 F.3d 660 (8th Cir. 2003) (time not a material element of conspiracy)
- United States v. Mitchell, 613 F.3d 862 (8th Cir. 2010) (standard for admissibility of evidence; Rule 404(b) relevance)
- United States v. Stephenson, 924 F.2d 753 (8th Cir. 1991) (evidence relevance to conspiracy)
- United States v. Faulkner, 636 F.3d 1009 (8th Cir. 2011) (plain error review for admission of evidence)
- United States v. Olano, 507 U.S. 725 (1993) (plain error standard)