United States v. Tyrone Moore , 709 F.3d 287 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 11-5095
TYRONE MOORE,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Senior District Judge.
(1:09-cr-00297-JFM-1)
Argued: December 7, 2012
Decided: March 1, 2013
Before TRAXLER, Chief Judge, and GREGORY and
DAVIS, Circuit Judges.
Vacated and remanded by published opinion. Chief Judge
Traxler wrote the opinion, in which Judge Gregory and Judge
Davis joined.
COUNSEL
ARGUED: James Michael Nichols, WARNKEN, LLC, Tow-
son, Maryland, for Appellant. Jefferson McClure Gray,
OFFICE OF THE UNITED STATES ATTORNEY, Balti-
2 UNITED STATES v. MOORE
more, Maryland, for Appellee. ON BRIEF: Byron L.
Warnken, WARNKEN, LLC, Towson, Maryland, for Appel-
lant. Rod J. Rosenstein, United States Attorney, Christopher
J. Romano, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland,
for Appellee.
OPINION
TRAXLER, Chief Judge:
A jury convicted Tyrone Moore of carjacking, using a fire-
arm in furtherance of carjacking, and conspiracy. After the
trial, Moore filed a motion for a new trial based, in part, on
newly discovered evidence, but the district court denied it.
Because the district court erred in denying Moore’s motion
for a new trial, we vacate and remand for a new trial consis-
tent with this opinion.
I.
A.
In the early evening of November 25, 2007, Donald Roarty
parked his Jeep Grand Cherokee on East 39th Street in Balti-
more, Maryland to attend a meeting at a nearby church. When
he exited his vehicle and began walking toward the church, he
heard a voice behind him asking where he could find a
"whatchamacallit." When Roarty turned around, a man who
was standing approximately five feet away pulled out a hand-
gun and demanded the keys to Roarty’s Jeep. Roarty com-
plied by tossing the keys to the assailant, who subsequently
drove off in the Jeep. Roarty then called the police to report
the crime. The encounter lasted only twenty to thirty seconds.
Because the assailant was wearing a hat and had a dark ban-
dana over his face, Roarty could only see his eyes and
dreadlocks showing below the hat.
UNITED STATES v. MOORE 3
Three days later, on November 28, 2007, Detective Bran-
don Underhill of the Harford County Sheriff’s Office, who
was working in an undercover capacity at the time, met with
Larry Pollin to conduct an undercover drug buy. Pollin
arrived at the meeting place in a Jeep Grand Cherokee with
three other people, and he and Detective Underhill exchanged
money for crack cocaine. Detective Underhill could not deter-
mine who drove the vehicle to the drug buy, but he testified
that Pollin drove the vehicle away. A surveillance unit of the
sheriff’s office working alongside Detective Underhill ran the
plates and determined that the Jeep was registered to Donald
Roarty. At the time, however, the sheriff’s office was unaware
that Roarty had reported the Jeep stolen. Therefore, after fol-
lowing the Jeep for 45 minutes to conduct surveillance after
the drug sale, the sheriff’s office terminated the encounter.
The detectives involved in the drug buy were unable to iden-
tify the other three individuals in the vehicle.1
Four days later, on December 2, 2007, Deputy Jeffrey Ger-
res of the Harford County Sheriff’s Office was patrolling an
apartment complex known for drug and gang activity. Gerres
noticed several men standing in a breezeway below a sign that
proscribed loitering and recognized one of the men as Lamere
Walton, a known gang member. Deputy Gerres parked out-
side of the development and approached the men on foot to
investigate. As Deputy Gerres approached, some of the men
ran into nearby apartments. However, Deputy Gerres was able
to stop and detain Walton, who immediately began reaching
in his pockets. Fearing that Walton was attempting to get a
weapon or seeking to destroy evidence, Deputy Gerres pulled
Walton’s hand out of his pocket. In Walton’s hand was a car
key.
1
Pollin was subsequently arrested, taken into custody, and indicted for
his participation in a gang-related shooting. It is unclear from the record
whether Pollin or the other three individuals were ever indicted for their
role in selling crack cocaine.
4 UNITED STATES v. MOORE
Deputy Gerres pressed the key’s panic button, which acti-
vated the lights and horn of a Jeep parked nearby. After run-
ning the plates on the vehicle, Deputy Gerres learned that the
vehicle had been recently stolen in an armed carjacking. The
vehicle turned out to be Roarty’s stolen Jeep, and Walton was
placed under arrest. Deputy Gerres then searched the vehicle
with the aid of other officers and found a black and orange
Baltimore Orioles baseball cap. During this encounter, Tyrone
Moore, whom Deputy Gerres knew to be a gang member and
an associate of Walton’s, walked by the scene wearing a black
Orioles t-shirt, black and orange pants, and black and orange
shoes. Because Moore and Walton were friends and because
Moore’s outfit matched the baseball cap within the vehicle,
Deputy Gerres detained Moore for a brief investigation.
Moore denied involvement in the carjacking, and Deputy Ger-
res took photographs of Moore to show his clothing and then
released him.
Subsequently, the Baltimore City Police Department began
efforts to create a photo line-up for use in the Roarty case.
The police department contacted Corporal Richard E. Carroll,
III, of the Maryland State Police Department, and requested
a photograph of Moore to use in the photo array. Corporal
Carroll indicated that not only did he have a photo of Moore,
but he also possessed a photo array, already prepared for an
unrelated investigation in October 2007, that included
Moore’s photograph. Corporal Carroll provided that photo
array to the city police officers who decided to use it in their
investigation.
Roarty was then contacted by the city police department
and asked to come to the station to view the photo array. The
police department told Roarty that they had recovered his
Jeep and that they had a suspect in custody. Although the
police department did not tell Roarty that the suspect was in
the photo array, Roarty testified that he assumed the suspect
would be in it based on the fact that a suspect was in custody
at the time. When looking at the photos, Roarty initially indi-
UNITED STATES v. MOORE 5
cated that he was not sure he would be able to make an identi-
fication in light of the fact that so much of the assailant’s face
had been covered up at the time of the carjacking. One of the
officers administering the photo array instructed Roarty to
focus on the portion of the face that Roarty could see at the
time of the carjacking—the eyes. Based on the eyes and gen-
eral shape of the face in a particular photograph, Roarty
picked Moore out of the photo array, indicating at the time
that he was 95% certain that the person he selected was the
carjacker.
B.
Moore was indicted for conspiracy to steal a car with intent
to cause serious bodily harm, see 18 U.S.C. § 371 ("Count
1"); theft of a car with intent to cause serious bodily harm, see
18 U.S.C. § 2119 ("Count 2"); and use of a firearm in further-
ance of carjacking, see 18 U.S.C. § 924(c) ("Count 3"). Prior
to trial, Moore requested that the government provide photo-
graphs of Pollin taken at or near the time the carjacking
occurred. The government complied by providing Moore with
several pictures of Pollin, including one depicting Pollin with
dreadlocks ("Dreadlocks Picture") and one depicting Pollin
with short hair ("Short Hair Picture"). The government
explained to Moore’s attorney that some of the pictures came
from a police incident report relating to Pollin’s arrest for a
shooting that occurred approximately one month after the car-
jacking. The Short Hair Picture was dated December 31,
2007. Notably, the Dreadlocks Picture was undated.
The focus of the trial that followed was the identity of the
carjacker. Seeking to persuade the jury that Moore was the
carjacker, the government made efforts to eliminate the possi-
bility that someone other than Moore committed the crime.
Because Pollin was the first person seen driving the stolen
Jeep, only three days after the carjacking, part of the govern-
ment’s case was excluding Pollin as the possible assailant.
6 UNITED STATES v. MOORE
The government sought to achieve this end in large part by
offering proof that Pollin did not have dreadlocks at the time
of the carjacking. To establish this fact, the government pro-
duced the testimony of the officer who saw and dealt with
Pollin shortly after the Roarty incident and corroborated his
testimony with a photograph taken of Pollin a month later.
Specifically, Detective Underhill testified that he saw Pollin
on November 28, 2007, three days after Roarty was robbed
and that Pollin had short hair at that time. Detective Underhill
then viewed the Short Hair Picture of Pollin, represented by
the government to have been taken by law enforcement on
December 31, 2007, and confirmed that Pollin’s short hair in
that photograph was similar to his short hair length that
Detective Underhill saw on November 28. Detective
Underhill further testified that he could not recall Pollin ever
having dreadlocks. When counsel for Moore asked Detective
Underhill about the Dreadlocks Picture on cross-examination,
Detective Underhill explained that "[t]he hair [was] different
from what [he] kn[e]w." J.A. 341.
As previously stated, the government also provided Moore
with a picture of Pollin with dreadlocks, but it was undated.
In attempting to prove that Pollin had dreadlocks at the time
of Roarty’s carjacking, Moore’s counsel asked defense wit-
ness Michael Wells about the Dreadlocks Picture. Wells was
a friend of Moore’s and a cousin of Pollin’s, and was incar-
cerated at the time of Moore’s trial for drug and firearm
offenses. So although Wells did testify that Pollin had
dreadlocks at the time of the carjacking, his testimony was
weak in the face of the government’s dated photograph and
corroborating testimony from Detective Underhill. Ulti-
mately, the jury believed that Moore was the assailant and
that Pollin was not, and it convicted Moore of each count in
the indictment.2
2
To be certain, establishing that Pollin was or was not the carjacker was
not the only issue at trial. However, as is evident by the fact that both the
government and Moore raised the issue of Pollin’s hair length in their
closing arguments, it was a central issue at the trial.
UNITED STATES v. MOORE 7
C.
After trial, Moore continued to insist to his attorney that the
Short Hair Picture, despite the fact that it was dated December
31, 2007, was not consistent with his recollection of Pollin’s
appearance at that time. Counsel for Moore contacted counsel
for the government and asked him to confirm the date of the
Short Hair Picture. The government continued to represent
that the picture was taken on December 31, 2007, and it belit-
tled the defendant for continuing to raise a question about the
date the photo was taken. Specifically, the government
responded to Moore’s counsel with the following: "To the
extent that your client claims to have seen [Pollin] . . . in
December with dre[a]ds, he is either mistaken or lying. Care
to guess which it is?" J.A. 785. As it turns out, the govern-
ment was the one mistaken. Pollin did indeed have dreadlocks
in November and December 2007, and the date on the Short
Hair Picture was wrong.
Moore’s attorney ultimately proved this by raising the issue
with Pollin’s former attorney, who happened to have in his
file Pollin’s real booking photograph taken on December 31,
2007, that depicted Pollin with dreadlocks. This photo
matched the undated Dreadlocks Picture. The government has
now admitted that the Short Hair Picture it received from Har-
ford County, produced to Moore, used and relied upon at trial,
and represented to have been taken on December 31, 2007,
was, unbeknownst to it at the time of trial, not taken until
early 2009 when Pollin first cut off his dreadlocks.
This discrepancy resulted from a system utilized by Har-
ford County up until Spring 2009, in which booking photo-
graphs were replaced automatically by new photographs
whenever an inmate changed his or her appearance dramati-
cally. According to Corporal Christopher Crespo, a booking
supervisor with the Harford County Sheriff’s Office, under
this system, an inmate’s original booking photograph would
always be retained in a hard-copy file but the electronic copy
8 UNITED STATES v. MOORE
of the original booking photograph would be replaced by any
new photographs that were taken to depict an inmate’s then-
current appearance. And as is evident from the facts of this
case, the new electronic photograph would apparently retain
the date of the inmate’s initial booking, as if the new picture
were taken when the inmate was initially processed and
brought into the detention facility.3 Corporal Crespo further
stated that the Short Hair Picture was taken in January 2009
and that his review of the complete record of photographs
revealed that Pollin had dreadlocks until January 2009.
There is no doubt that Harford County could have done
more to ensure that it provided the United States Attorney’s
Office with an accurate booking photograph of Pollin. How-
ever, there is no evidence to suggest that the Assistant United
States Attorney prosecuting this case produced and used the
Short Hair Picture with anything but an honest belief in its
accuracy. That being said, Moore suffered the consequences
of having a jury believe that Pollin, the first person seen in the
Jeep three days after the carjacking, looked nothing like the
assailant described by Roarty at the time of the carjacking.
For this reason, Moore filed a motion for a new trial with
the district court. In his motion, Moore argued that the discov-
ery of the actual dates of the Short Hair Picture and the
Dreadlocks Picture constituted newly discovered evidence
and, alternatively, that the government’s failure to disclose
this fact violated Brady v. Maryland, 373 U.S. 83 (1963). The
district court denied the motion, and Moore appeals from that
ruling. Because we find that the district court erred in reject-
ing Moore’s newly-discovered-evidence argument, we con-
clude that Moore is entitled to a new trial.
3
Because Harford County, and subsequently the government at trial,
produced the Short Hair Picture, we assume that the Short Hair Picture
came from Harford County’s electronic file.
UNITED STATES v. MOORE 9
II.
To be entitled to a new trial under Federal Rule of Criminal
Procedure 33 based on newly discovered evidence, a defen-
dant must satisfy a five-part test by showing that (1) the evi-
dence is newly discovered; (2) the defendant exercised due
diligence; (3) the newly discovered evidence is not merely
cumulative or impeaching; (4) the evidence is material; and
(5) the evidence would probably result in acquittal at a new
trial. See United States v. Chavis, 880 F.2d 788, 793 (4th Cir.
1989) ("Chavis Test"). We review the denial of a motion for
a new trial for an abuse of discretion. United States v. Perry,
335 F.3d 316, 320 (4th Cir. 2003).
The district court concluded that Moore satisfied the first
three prongs of the Chavis Test because the actual booking
photograph of Pollin taken on December 31, 2007, depicting
him with dreadlocks was newly discovered evidence; Moore
exercised due diligence in discovering the evidence; and the
new evidence was not merely cumulative or impeaching.
However, the district court concluded that Moore could not
satisfy the materiality prong of the Chavis Test because he put
on a defense at trial that the court found to be disingenuous.
Specifically, the court concluded that
Moore chose to put on a defense that he could not
have committed the carjacking because he was pres-
ent at a violent incident that occurred at another
location when the carjacking occurred. Although a
photograph suggesting that Pollin, not Moore, might
have committed the carjacking was tangentially rele-
vant to the defense, the fact of the matter is that the
defense was entirely unconvincing, as was Moore’s
contention, based upon false testimony that he pro-
duced, that it was a junkie who committed the car-
jacking. . . . Because he chose to present a defense
based on perjured testimony, I will not permit him to
have another opportunity to obtain an acquittal
10 UNITED STATES v. MOORE
because of the innocent error that was made by the
production of an erroneous photograph to him.
J.A. 798-99. And with regard to the fifth prong of the Chavis
Test concerning the probability of success on retrial, the dis-
trict court stated that it did not need to reach that issue given
its conclusion that the evidence was not material. Nonethe-
less, the court also stated that "[i]f Moore had not made the
decision to present this fabricated defense, I would grant him
the new trial he requests." J.A. 799.
On appeal, Moore contends that the district court correctly
resolved the first three Chavis factors in his favor, that the dis-
trict court abused its discretion in evaluating the materiality
prong, and that he can satisfy the fifth Chavis factor by show-
ing that it is likely that he would be acquitted at a new trial.
The government, however, contends that Moore cannot sat-
isfy any of the Chavis factors. See United States v. McHan,
386 F.3d 620, 623 (4th Cir. 2004) (observing that we are "en-
titled to affirm on any ground appearing in the record, includ-
ing theories not relied upon or rejected by the district court"
(internal quotation marks omitted)).
In our view, the district court did not abuse its discretion in
resolving the first prong of the Chavis Test in favor of Moore.
"[N]ewly discovered evidence means evidence discovered
since the trial," United States v. Fulcher, 250 F.3d 244, 250
(4th Cir. 2001) (internal quotation marks omitted), and the
discovery of the actual dates of the Dreadlocks Pic-
ture—Pollin’s actual booking photograph—and the Short Hair
Picture were discovered by Moore’s counsel after the trial.
The district court also did not abuse its discretion in conclud-
ing that Moore exercised due diligence. First, as a general
matter, Moore made reasonable efforts before and during trial
to establish that Pollin had dreadlocks at the time of the car-
jacking. These efforts included making pre-trial requests of
the government for accurate photographs of Pollin, seeking
surveillance photographs of Pollin taken during an unrelated
UNITED STATES v. MOORE 11
narcotics investigation, questioning a friend of Pollin’s about
Pollin’s hairstyle, and cross-examining Detective Underhill
about his recollection of Pollin’s hair. With regard to the spe-
cific photo of Pollin taken on December 31, 2007, what must
be remembered is that the government not only represented to
Moore’s lawyer (and the jury) that the photo was taken on the
date inscribed on the picture, but the date was confirmed and
bolstered by the testimony of the government’s witness
Detective Underhill. While there may be times when due dili-
gence requires an attorney not to accept at face value a repre-
sentation made by the government, here the photo evidence
was created by law enforcement and could reasonably be pre-
sumed to be within the exclusive control of law enforcement
and hence the government, and the date stamp on the photo
reasonably presumed to be accurate. We cannot fault Moore’s
attorney for not pursuing the validity of the government’s rep-
resentation further than he did. Although Moore did not seek
out Pollin’s attorney until after trial, we do not think that the
district court abused its discretion in finding that Moore satis-
fied the due diligence prong under these circumstances. And
finally, the district court did not abuse its discretion in con-
cluding that the newly discovered evidence was not merely
cumulative or impeaching.
With regard to the fourth prong of the Chavis Test, how-
ever, we believe the district court erred in concluding that the
newly discovered evidence was not material. A defendant sat-
isfies the materiality prong by showing that the evidence was
"material to the issues involved." United States v. Robinson,
627 F.3d 941, 948 (4th Cir. 2010) (internal quotation marks
omitted). In evaluating the materiality prong, the district court
concluded that the newly discovered evidence was "tangen-
tially relevant" to Moore’s contention that Pollin was the car-
jacker. J.A. 799. But the court nonetheless found that Moore
could not establish materiality because Moore put on two
defenses that the court found to be disingenuous. It is true that
part of Moore’s defense was establishing that he was present
at a violent altercation at another location at the time of the
12 UNITED STATES v. MOORE
carjacking and that a "junkie" committed the carjacking.
However, Moore’s defense also included pointing the finger
at Pollin as the more likely assailant, a defense that was not
only addressed during trial but was also raised during
Moore’s closing argument. At bottom, this case was about the
identity of the carjacker, a very close issue given the small
amount of the assailant’s face Roarty could see during the
incident. Accordingly, evidence bearing on the identification
of the carjacker was undoubtedly material to the issues
involved in this case. See United States v. Piazza, 647 F.3d
559, 569 (5th Cir. 2011) (agreeing with district court for prop-
osition that "evidence is certainly material as it goes to
whether another person committed the acts of which the jury
found [the defendant] guilty" (internal quotation marks omit-
ted)). A conclusion to the contrary in the context of this case
was error in our view.
Because the district court found that Moore could not sat-
isfy the fourth Chavis factor, it did not rule definitively on the
fifth and final factor—whether the newly discovered evidence
would probably result in acquittal at a new trial. Having
reviewed the parties’ briefs and the record below, having had
the benefit of oral argument, and given the importance of the
evidence, we find that Moore can satisfy the fifth factor.
Accordingly, Moore is entitled to a new trial.4
III.
Moore also challenges the admission under Federal Rule of
Evidence 404(b) of evidence of his prior possession of certain
firearms. Because this issue is likely to recur on retrial, we
exercise our discretion to address the issue in this appeal. See
United States v. Ebersole, 411 F.3d 517, 535 (4th Cir. 2005);
see also Elm Grove Coal Co. v. Dir., O.W.C.P., 480 F.3d 278,
4
Given our disposition of the newly-discovered-evidence issue, we need
not address Moore’s Brady claim.
UNITED STATES v. MOORE 13
299 n.20 (4th Cir. 2007) ("We choose to address this discov-
ery issue because it is likely to arise on remand.").
A.
At trial, the district court permitted the government to intro-
duce evidence showing that Moore possessed a firearm on at
least three prior occasions: Mia Franklin testified that she had
previously seen Moore possessing a "revolver," J.A. 316, and
the government introduced a photograph of a semi-automatic
pistol belonging to Moore that was found in the apartment of
Moore’s girlfriend and another photograph showing Moore
holding a semi-automatic pistol.5
As Moore argues, revolvers and semi-automatic pistols are
not the same thing. "[A] revolver is a type of handgun having
a revolving cylinder containing chambers for cartridges. The
gun is fired by squeezing the trigger or cocking the hammer,
whereupon the cylinder rotates clockwise and aligns a cham-
ber with the barrel." United States v. Precise Import Corp.,
458 F.2d 1376, 1378 (C.C.P.A. 1972). A semi-automatic pis-
tol, on the other hand, does not have a rotating cylinder.
Instead, it has a removable magazine in its handle which
"utiliz[es] the energy of recoil to feed cartridges from a maga-
zine to the chamber in the barrel." Id. at 1379. The firearm
used in the carjacking was a revolver, not a semi-automatic
pistol.
B.
Rule 404(b) prohibits evidence of other crimes or bad acts
committed by the defendant if offered "solely to prove a
defendant’s bad character, but such evidence may be admissi-
ble for other purposes, such as proof of motive, opportunity,
5
Officer James Evans of the Aberdeen Police Department identified the
firearms in these photographs as semi-automatic pistols. Neither party dis-
putes that description.
14 UNITED STATES v. MOORE
intent, preparation, plan, knowledge, identity, or absence of
mistake or accident." United States v. Byers, 649 F.3d 197,
206 (4th Cir. 2011) (internal quotation marks and alterations
omitted). "Rule 404(b) is a rule of inclusion, admitting all evi-
dence of other crimes or acts except that which tends to prove
only criminal disposition." Id. (internal quotation marks omit-
ted).
Moore’s Rule 404(b) argument focuses primarily on the
district court’s decision to admit the semi-automatic-pistol
evidence. However, to the extent that Moore also contends
that Franklin’s testimony about his possession of a revolver
violated Rule 404(b), we find no abuse of discretion by the
district court. See id.Moore’s possession of a revolver—the same type of gun
used in the carjacking—was directly relevant and necessary to
proving his guilt. See id. at 208 (evidence is relevant for Rule
404(b) purposes if it has "any tendency to make the existence
of any fact that is of consequence to the determination of the
action more probable or less probable than it would be with-
out the evidence" (internal quotation marks omitted)); id. at
209 ("Evidence is necessary where it is an essential part of the
crimes on trial, or where it furnishes part of the context of the
crime." (internal quotation marks omitted)). Therefore, we
cannot say that the district court "acted arbitrarily or irratio-
nally in admitting [this] evidence." United States v. Benkahla,
530 F.3d 300, 309 (4th Cir. 2008) (internal quotation marks
omitted); see Byers, 649 F.3d at 206 (decision to admit Rule
404(b) evidence is not an abuse of discretion unless the deci-
sion was "arbitrary and irrational" (internal quotation marks
omitted)).
The admission of the semi-automatic-pistol evidence, how-
ever, presents a different issue. See United States v. Miller,
673 F.3d 688, 695 (7th Cir. 2012) ("If the prior possession
was of a different gun, then its value as direct or circumstan-
UNITED STATES v. MOORE 15
tial evidence . . . drops and the likelihood that it is being used
to show propensity to possess guns rises considerably.").
As noted above, evidence of prior bad acts is generally
admissible except when the evidence is used "to prove a per-
son’s character in order to show that . . . the person acted in
accordance with the character." Fed. R. Evid. 404(b)(1). The
rule carves out this propensity character evidence from what
is otherwise "a rule of inclusion" because "evidence of a per-
son’s character supplies an inadequate causal link between it
and the specific conduct sought to be established." United
States v. Queen, 132 F.3d 991, 994, 995 (4th Cir. 1997). The
district court accepted the government’s theory and admitted
the semi-automatic-pistol evidence to demonstrate that Moore
had the "opportunity" to possess and to access firearms. See
Fed. R. Evid. 404(b)(2). We find that the district court’s deci-
sion to admit this evidence for this reason was error.
At trial, Moore never contested the fact that he had previ-
ously possessed a firearm. Moreover, Franklin’s testimony
that she had previously seen Moore in possession of a
revolver established Moore’s access to the type of firearm that
was used in the carjacking. The evidence of Moore’s posses-
sion of a different type of firearm, introduced via Rule 404(b),
served only to establish Moore’s criminal disposition and was
therefore inadmissible. See United States v. Hawkins, 589
F.3d 694, 705 (4th Cir. 2009) (explaining that evidence of
defendant’s prior possession of a firearm would not be admis-
sible under Rule 404(b) at a separate trial on charges that
defendant brandished a different firearm during a carjacking:
"There [is] simply nothing about [the defendant’s] being in
possession of a different firearm . . . that [is] related to any
of the elements of the carjacking counts."). Accordingly, we
find that the district court erred in finding the evidence admis-
sible under Rule 404(b)(2).
In reaching this conclusion, however, we do not foreclose
the possibility that the district court on retrial may find the
16 UNITED STATES v. MOORE
semi-automatic-pistol evidence admissible under a different
rule, see, e.g., United States v. LeCompte, 131 F.3d 767, 769
(8th Cir. 1997) ("[T]his Court’s holding that the evidence was
inadmissible under Rule 404 at the first trial does not fore-
close consideration of admissibility under a different rule of
evidence on retrial."), or that the evidence at retrial may differ
significantly enough to warrant reconsideration of its admissi-
bility under Rule 404(b), see Sejman v. Warner-Lambert Co.,
845 F.2d 66, 69 (4th Cir. 1988) (law-of-the-case doctrine does
not preclude reconsideration of issue resolved by appellate
court if "subsequent trial produces substantially different evi-
dence" (internal quotation marks omitted)). Nonetheless, in
the context of the evidence presented in the trial that we have
reviewed, the district court abused its discretion by admitting
the semi-automatic-pistol evidence under Rule 404(b).6
IV.
For the foregoing reasons, we vacate Moore’s conviction
and remand for a new trial in accordance with this opinion.
VACATED AND REMANDED
6
Moore also challenges Roarty’s out-of-court identification prior to trial
and the district court’s factfinding at sentencing. Having reviewed the par-
ties’ arguments, we find no error with regard to these two claims.