United States v. Corey A. Moore , 769 F.3d 264 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4446
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COREY A. MOORE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:10-cr-00648-AW-1)
Argued: September 16, 2014 Decided: October 10, 2014
Before WILKINSON, GREGORY, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Gregory and Judge Keenan joined.
ARGUED: Philip Urofsky, SHEARMAN & STERLING LLP, Washington,
D.C., for Appellant. James I. Pearce, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Mark D.
Lanpher, Bryan Dayton, SHEARMAN & STERLING LLP, Washington,
D.C., for Appellant. Mythili Raman, Acting Assistant Attorney
General, Denis J. McInerney, Deputy Assistant Attorney General,
Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, Sujit Raman, Chief of Appeals, Arun G. Rao,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee.
WILKINSON, Circuit Judge:
After a five-day bench trial, the district court found
defendant Corey Moore guilty of, among other things, violating
18 U.S.C. § 924(c) by possessing a firearm “in furtherance of” a
crime of drug trafficking. On appeal, Moore challenges the
denial of a motion to suppress evidence and the sufficiency of
the evidence on the § 924(c) count. As to the Fourth Amendment
claim, the motion to suppress should have been raised prior to
trial. It was not so raised, and, as the district court found,
it was thereby waived. We also find that there is ample evidence
to support finding a nexus between the drug trafficking and the
firearms under § 924(c) and therefore affirm the conviction.
I.
When reviewing the facts of this case, we take them in the
light most favorable to the government as the prevailing party
below. United States v. Black, 707 F.3d 531, 534 (4th Cir.
2013); United States v. Lomax, 293 F.3d 701, 705 (4th Cir.
2002). Police officer Hubley was driving the streets of Takoma
Park, Maryland, on September 25, 2010, when he observed Corey
Moore walking down Sherman Avenue carrying a green bottle.
Suspicious that the bottle might be “a bottle of Heineken beer
or the like,” the officer turned around. J.A. 121. He radioed
that he was going to conduct a stop and beckoned to Moore. Moore
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began to approach the police cruiser but turned and fled as the
officer stepped out of the vehicle.
Officer Hubley pursued and eventually apprehended Moore. In
the course of that pursuit, both the officer and two bystanders
saw Moore run behind a dumpster and toss up a package. Though
Moore and the officer continued running, that package was later
recovered and found to contain a half kilogram of cocaine with a
street value of over $10,000.
Two days later, officers responded to an attempted break-in
at 118 Sherman Avenue in Takoma Park. Upon investigation, the
officers found a broken window in the door to the basement
apartment. The landlord informed the officers that the basement
apartment was rented to “Corey Moore.” Based on the attempted
burglary and Moore’s arrest two days earlier with a half
kilogram of cocaine, the officers obtained a search warrant for
the apartment. 1 In the apartment, the officers found 2.8
kilograms of phencyclidine (PCP) under the kitchen sink in a
large pickle jar, a digital scale disguised as a CD case that
tested positive for cocaine residue, open plastic bags, a bag of
bottles of a sort used for drug distribution, approximately
$45,000 in cash, and two handguns in the bedroom -- an unloaded
1
When he was arrested, Moore gave the officers a different
address on another street in the Anacostia neighborhood of
Washington, D.C.
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.44 caliber Desert Eagle pistol and a loaded .38 caliber Smith &
Wesson revolver. 2
A federal grand jury indicted Moore on four counts: (1)
possession with intent to distribute a substance containing a
detectable amount of cocaine in violation of 21 U.S.C.
§ 841(a)(1); (2) possession with intent to distribute one
kilogram or more of PCP in violation of 21 U.S.C. § 841(a)(1);
(3) possession of firearms in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c); and (4) possession of
a firearm by a felon in violation of 18 U.S.C. § 922(g)(1).
The district court held a five-day bench trial, during
which it heard from twenty government witnesses and six defense
witnesses, including the defendant. Over four days into the
trial and upon returning from a recess immediately before
closing arguments, the defense moved for suppression of all
tangible evidence on the grounds that Officer Hubley did not
have reasonable suspicion to stop Moore on the street. Moore
claimed that the stop constituted an illegal seizure under the
Fourth Amendment that tainted all subsequent evidence. The
2
Defendant previously challenged the validity of the
apartment search on the grounds that there was no probable cause
to justify the warrant and the warrant was so deficient on its
face that no reasonable officer would have thought it
constitutionally valid. The district court granted the motion to
suppress, but we reversed on the basis of the good faith
exception set forth in United States v. Leon, 468 U.S. 897(1984). See United States v. Moore, 477 F. App’x 102 (2012).
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district court denied the motion based on its “recollection of
the evidence,” without briefing or argument from the government.
The district court summarized the testimony, made
credibility findings, and announced the verdict. It repeatedly
stated that it did not find the defendant’s testimony and
evidence to be credible. The court found Moore guilty on all
four counts. At the sentencing hearing in May 2013, the court
denied the motion for reconsideration of its suppression ruling
on the grounds that Moore waived the claim by not raising it
before trial as required by the Federal Rules of Criminal
Procedure. Moore was sentenced to 271 months’ imprisonment
followed by five years of supervised release. A timely appeal of
the denial of the suppression motion and of the § 924(c)
conviction followed.
II.
A.
Moore contends that the district court did not find the
motion to suppress evidence waived but rather ruled --
incorrectly, in his view -- on the merits that no Fourth
Amendment violation had occurred. He argues that the officer
lacked reasonable suspicion to stop him and seeks to suppress
all evidence flowing from that initial stop, including items
recovered during the search of the apartment -- a search that,
in his view, was not sufficiently attenuated from the earlier
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illegality. See Segura v. United States, 468 U.S. 796, 804
(1984).
The Federal Rules of Criminal Procedure require parties to
raise motions to suppress evidence before trial. Fed. R. Crim.
P. 12(b)(3)(C). The failure to file a suppression motion by the
specified pretrial deadline operates as a waiver unless the
court grants relief from the waiver “[f]or good cause.” Fed. R.
Crim. P. 12(e). See United States v. Chavez, 902 F.2d 259 (4th
Cir. 1990).
The rule that motions to suppress are waived unless raised
before trial or delayed for good cause is not just some
procedural tripwire set to ensnare unwary defendants. Requiring
parties to make suppression motions before rather than during or
at the end of trial greatly reduces the risk that such motions
may catch opposing litigants unprepared. Parties deserve to know
at the beginning of trial, to the extent possible, what evidence
is to be excluded or included. Often the evidence sought to be
suppressed is so probative that if it is excluded, the
indictment may be dismissed. By the same token, a defendant who
knows what evidence will be admitted is better able to prepare
his defense accordingly or, in many cases, to choose to enter a
plea instead. Waiting until the end of trial deprives both sides
of the opportunity to adequately prepare and make informed
decisions about trial strategy based on the admitted evidence.
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It is not only the litigants who are harmed by tardy
suppression motions. Especially where a jury is involved,
introducing such motions during trial, not to mention
immediately before closing arguments, completely disrupts the
rhythm of the proceedings. Trials move typically from
presentations to arguments to instructions and deliberations,
and suppression motions during this progression can come
literally out of the blue. Evidence must be taken, and witnesses
may need to be rounded up in order to properly determine whether
suppression is required. It puts the fact finder -- jury or
judge -- on unwanted hold until the suppression hearing is held.
Furthermore, by the time of closing arguments evidence has
been introduced, including quite possibly the evidence the
defendant seeks to suppress. If the trial court determines that
the evidence should not have been introduced, it must ask the
fact finder to “unring the bell” and ignore evidence it has
heard that is in all likelihood highly prejudicial to the
defendant. And inasmuch as jeopardy has attached, a ruling
suppressing the evidence may effectively deprive the government
of the right to appeal it. See 18 U.S.C. § 3731 (providing
interlocutory appeals of suppression orders where defendant has
not been placed in jeopardy). For all of the above reasons, the
pretrial filing of suppression motions is greatly to be desired.
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B.
Moore’s attorney waited until immediately before closing
arguments to move to suppress the evidence resulting from
Moore’s initial contact with Officer Hubley. During the
sentencing hearing, when addressing the motion for
reconsideration of the denial of the suppression motion, the
district court repeatedly stated that the issue had been waived.
Nevertheless, the defendant suggests that good cause existed
because he knew information at the end of trial that he did not
know at the beginning. He also argues that the district court
implicitly found good cause because it found sufficient
information on the record to rule on the suppression motion and
then made some comments on the merits. Specifically, the court
stated that there was no stop because the defendant fled upon
seeing Officer Hubley step out of the car. See California v.
Hodari D., 499 U.S. 621 (1991).
While we do not suggest that the district court’s
assessment of the merits was incorrect -- quite the contrary --
its comments in no way vitiated its waiver finding. The district
court stated that the issue was waived, then made some cursory
comments on the merits, after which it stated again that it
found the issue waived. J.A. 1212-15. At no time during this
colloquy did the district court so much as indicate there might
be good cause to excuse the waiver. District judges are in
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control of their orders and hence of the rationales supporting
them. Furthermore, trial courts may -- and often do -- adjust or
modify the reasons for their rulings or even provide alternative
grounds for a decision with an eye to appellate review. In the
event, for example, that an appellate court finds a flaw in a
trial court’s procedural ruling, it can often review its
decision on the merits without having to expend judicial
resources on a remand. If the district court in this case simply
supplied alternative grounds for its decision, we take no
exception to it.
For good reason did the district court not find good cause
here: there was none. Learning new information by the end of
trial does not alone support a good cause finding for delay. See
United States v. Wilson, 115 F.3d 1185, 1190-91 (4th Cir. 1997);
United States v. Ricco, 52 F.3d 58, 62 (4th Cir. 1995). For one
thing, Moore and his attorney were aware of the alleged stop at
the start of trial. In fact, he had previously attempted,
unsuccessfully, to suppress evidence from the apartment search
on Fourth Amendment grounds. See United States v. Moore, 477 F.
App’x 102 (4th Cir. 2012). Moreover, the whole point of a
suppression hearing is to develop the evidence surrounding the
challenged action, rather than await its possible emergence at
trial. Finally, Moore’s position would render the pretrial
requirement virtually meaningless. Defendants often learn
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information during trial that they did not know before. If that
is sufficient grounds to set aside Rule 12’s pretrial
requirement on “good cause,” the exception swallows the rule.
Moore asserts that other circuits have gone the other way
on this issue. However neither of the cases he cites from the
Ninth and Eleventh Circuits involved a district court finding of
waiver. See United States v. Vasquez, 858 F.2d 1387, 1388-89
(9th Cir. 1988); United States v. Contreras, 667 F.2d 976, 978
n.2 (11th Cir. 1982). And in Vasquez at least, the district
court delved far more deeply at trial into the merits than here,
actually listening to oral arguments and entertaining the
parties’ briefs on the suppression issue. Vasquez, 858 F.2d at
1388-89. The Second Circuit for its part found a waiver where
the district court sua sponte considered and addressed a Fourth
Amendment issue at trial, because the defendants had failed to
make a suppression motion until appeal. United States v. Ulloa,
882 F.2d 41, 43 (2d Cir. 1989). We need not pass on the
soundness of these various holdings other than to note that, at
best from Moore’s point of view, they are inapposite. We thus
affirm the district court for the reasons set forth above.
III.
Moore also contends that there was insufficient evidence to
uphold his § 924(c) conviction. Though he does not dispute that
the government had sufficient evidence to show possession of
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narcotics with intent to distribute (a “drug trafficking crime”
under § 924(c)) and possession of the firearms, he contends the
government failed to prove that the firearms were possessed “in
furtherance of” the drug trafficking offense. For a claim of
insufficient evidence, “we must sustain the fact finder’s
verdict if ‘any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’”
United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002)
(quoting United States v. Myers, 280 F.3d 407, 415 (4th Cir.
2002)). Whether the requisite nexus between the firearms and the
drug trafficking crime existed under § 924(c) “is ultimately a
factual question,” Lomax, 293 F.3d at 705, subject to the
clearly erroneous standard, United States v. McKenzie-Gude, 671
F.3d 452, 463 (4th Cir. 2011). On this point, Moore has failed
to meet his burden.
Section 924(c) provides in relevant part:
[A]ny person who, . . . in furtherance of
any such [crime of violence or drug
trafficking] crime, possesses a firearm,
shall, in addition to the punishment
provided for such crime . . . (i) be
sentenced to a term of imprisonment of not
less than 5 years[.]
18 U.S.C. § 924(c)(1)(A). While this language has been
assiduously massaged by appellate courts, the statute is driving
at a simple point: whether there exists a sufficiently close
nexus between the firearms and the drugs to conclude that
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possession of the firearms was “in furtherance of” drug
trafficking.
In Lomax, we explained that Congress’s amendment to
§ 924(c) in 1998 “broaden[ed] the reach of the statute” in order
to more effectively “‘combat the dangerous combination of drugs
and guns.’” 293 F.3d at 704, 706 (quoting Muscarello v. United
States, 524 U.S. 125, 132 (1998)). As such, “the fact finder is
free to consider the numerous ways in which a firearm might
further or advance drug trafficking.” Lomax, 293 F.3d at 705.
Some of the ways a firearm might “further[], advance[], or
help[] forward a drug trafficking crime” include defending the
dealer’s drugs, drug profits, or his person. Lomax, 293 F.3d at
705. Firearms may also operate as an enforcement mechanism in a
dangerous transactional business or they may serve as a visible
deterrent. Id. A number of factors may be considered in making
this determination, among them:
“the type of drug activity that is being
conducted, accessibility of the firearm, the
type of weapon, whether the weapon is
stolen, the status of the possession
(legitimate or illegal), whether the gun is
loaded, proximity to drugs or drug profits,
and the time and circumstances under which
the gun is found.”
Id. (quoting United States v. Ceballos-Torres, 218 F.3d 409,
414-15 (5th Cir. 2000)). The fact finder may consider direct and
circumstantial evidence, and a conviction may rest upon the
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latter. United States v. Bonner, 648 F.3d 209, 213 (4th Cir.
2011).
The district court found that a nexus existed between the
firearm possession and drug trafficking and there is substantial
evidence to support this finding. Multiple relevant factors were
present in this case. Moore was keeping a great deal of cash
($45,057), as well as PCP (2.8 kilograms) in his apartment where
the firearms were found. The baggies, bottles, and digital scale
with cocaine residue suggest that the cocaine likewise had been
distributed from the residence and kept there. The firearms, one
of which was loaded, were kept in Moore’s bedroom in close
proximity to the money, suggesting their purpose was protection.
Moreover, it was unlawful for Moore to possess any firearm as a
convicted felon. The half kilogram of cocaine and 2.8 kilograms
of PCP were much larger amounts than anyone would need for
personal use, and indeed Moore does not contest on sufficiency
grounds the charge of possession with intent to distribute.
It was perfectly reasonable for the trier of fact to weigh
these factors and apply the commonsense notion that here the
guns and drugs were anything but unrelated. Taken together, a
reasonable fact finder could find beyond a reasonable doubt that
the firearms were in the apartment for the purpose of protecting
Moore, his drugs, and his drug trafficking profits. In the words
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of the statute, the firearms here were possessed “in furtherance
of” drug trafficking.
IV.
The judgment is hereby affirmed.
AFFIRMED
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