United States v. Christopher Moody , 631 F. App'x 392 ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0793n.06
No. 14-5205
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
FILED
Dec 04, 2015
)
DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE MIDDLE
CHRISTOPHER MOODY, )
DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
)
Before: SUTTON and KETHLEDGE, Circuit Judges; BECKWITH, District Judge.*
KETHLEDGE, Circuit Judge. A jury convicted Christopher Moody of manufacturing,
possessing, and distributing controlled substances in violation of 21 U.S.C. § 841(a), and several
related charges including possessing a firearm in furtherance of the drug scheme. Moody
challenges the evidentiary rulings and jury instructions related to video and audio evidence used
against him at trial. We affirm.
I.
In November 2013, a federal grand jury in Nashville, Tennessee indicted Christopher
Moody on eight counts related to manufacturing, possessing, and distributing controlled
substances “[b]etween in or around January 2008 through in or around December 2008[.]”
R. 2468 at 3, 4. The charges included possessing a firearm in furtherance of drug trafficking.
At trial, the government sought to introduce a video of Moody speaking, cooking crack,
and waving a handgun. Moody objected to the entire video. The district court excluded various
*
The Honorable Sandra S. Beckwith, Senior United States District Judge for the Southern District of Ohio, sitting
by designation.
No. 14-5205
United States v. Moody
excerpts that it deemed too prejudicial, including one in which Moody threatens to massacre his
enemies in a fashion similar to the shootings at Columbine High School and Virginia Tech. But
the district court admitted other excerpts. Three excerpts in particular drew repeated objections
from Moody, who argued that they predated the relevant limitations period and were thus
unfairly prejudicial evidence of “other acts” under Federal Rules of Evidence 403 and 404(b).
The first excerpt shows Moody stirring a concoction on a kitchen stove while describing his
process:
[Y]ou see me in the kitchen right now, bitch, in this Pyrex cooking
up this purloin yellow. Watch me get this shit hard. Watch me get
this shit hard, bitch. I got it soft—my homeboy brought it to me
soft. Now I’m gonna make it hard.
Exhibit 46b7, at 5:43-5:59. Multiple witnesses testified at trial that the excerpt was filmed in the
house that the indictment charged Moody with using to manufacture and distribute drugs. The
district court thus admitted the excerpt as probative of the manufacturing charge.
In the next excerpt, Moody anticipates his upcoming birthday, mentions a court date, and
comments on various officials—Judge Dozier in particular:
You gonna see me on my birthday, you bitches, with a big
[unintelligible] of moho, popping them pills and drinking, getting
high and trapping. Fuck the law. I’m [unintelligible] on my
birthday, man. Man, on my birthday, I got the heat on me all day. I
don’t even kill on my birthday. This, this is what I been waiting
for: to be out on my motherfucking birthday. I go to court on the
16th. Bitch, I got my lawyer paid up, ho, so you know I ain’t
getting locked up. Bitch, I’m gonna keep on running game on this
PO I got. Fuck him too. He a’ight, but fuck him too. The judge—
fuck you too. DA—fuck you too. Man, Dozier—Judge Do—Fuck
you too. I’m gonna [unintelligible] in your courtroom, bitch.
Man, if I could shoot you right now, bitch, I would.
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Id. at 9:10-9:57. The parties both relied on this excerpt to argue, respectively, that the video was
recorded before—or else during—the relevant and statutory periods. The district court thus
admitted the excerpt as necessary for the jury to decide when the depicted conduct occurred.
The final excerpt shows Moody describing his methods and motives as a drug trafficker
while gesturing with a handgun:
Anybody can get got, don’t get me wrong. But if a n**** try me
out here, a n**** better have a mask on and disguise himself real
well. Because if I know who he is, bitch, you ain’t gonna live.
One of us gonna go. And that’s for sure, man. That’s something I
know about the game, man. I finally done understand the game,
man. I know what it is, man. I mean, death around the corner out
here for y’all fuckboys or for any n****, man. But I know one
thing: I’m gonna get this money before I go. Wherever I go, I’m
getting this money. I’m gonna get this money in heaven or hell. It
don’t even matter. I’m gonna always get money.
Id. at 17:34-18:22. The district court admitted this excerpt as relevant to the charges of drug
trafficking and possessing a firearm in furtherance of that drug trafficking.
Moody also objected to an audio recording of phone conversations between various
alleged co-conspirators and to the jury instructions. The district court overruled both objections.
This appeal followed.
II.
We review evidentiary rulings and jury instructions for an abuse of discretion. See John
B. v. Emkes, 710 F.3d 394, 406 (6th Cir. 2013) (evidentiary rulings); United States v. Carson,
560 F.3d 566, 578 (6th Cir. 2009) (jury instructions).
A.
Moody argues that the district court omitted to determine the admissibility of the video
excerpts under Rule 404(b). But Rule 404(b) “does not apply to evidence that itself is probative
of the crime charged[.]” United States v. Price, 329 F.3d 903, 906 (6th Cir. 2003). And here the
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district court admitted the video excerpts as direct evidence of the crimes charged—not as
evidence of “other acts” under Rule 404(b).
Moody nevertheless contends that the video depicts “other acts” because it was recorded
in January 2008, and thus before the start of the statute-of-limitations period in November 2008.
See R. 2641 at 111. In the video, Moody says that he is 23 and discusses his upcoming birthday.
(He turned 24 on January 25, 2008.) And Moody alleges that “court on the 16th” could refer
only to a hearing he had on January 16, 2008. But the government responds that Moody’s
timeline is impossible, because Moody’s case involving Judge Dozier was not even filed until
April 2008. Thus, according to the government, the video was likely recorded shortly before
Moody’s next birthday, i.e., in December 2008 or January 2009. Given this dispute, the district
court left the jury to decide for itself when the video was recorded.
Moody asserts that the district court erred because, if the jury found that the video was
recorded before the statutory period—that is, before November 13, 2008—then the excerpts
would depict uncharged conduct that was inadmissible under Rule 404(b). Even if we accept
Moody’s timeline, however, uncharged criminal conduct is not “other acts” evidence when the
conduct “arises from the same events as” and “is directly probative of the charged offense[.]”
United States v. Clay, 667 F.3d 689, 698 (6th Cir. 2012).
Here, Moody’s own timeline puts the recording date in January 2008, squarely within the
period identified in the indictment (which was “between in or around January 2008 through in or
around December 2008”). And the video shows the precise conduct alleged in the indictment:
Moody in the specified house, cooking crack, waving a gun, and vowing to use the gun on
anyone who threatened his drug operation. Thus, even if the recorded activities predate the
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statutory period, they still “arise[] from the same events as” and are “directly probative of the
charged offense[.]” Id.
Moody next contends that the probative value of the video excerpts was substantially
outweighed by their risk of unfair prejudice—specifically, that allowing the jury to see the video
excerpts would “lead to a decision based upon [the] improper basis [that Moody] had bad
character.” But prejudice is unfair only when it is likely to persuade the jury in an inappropriate
manner. See In re Air Crash Disaster, 86 F.3d 498, 538 (6th Cir. 1996). And the district court
has “broad discretion in balancing probative value against potential prejudicial impact.” United
States v. Lloyd, 462 F.3d 510, 516 (6th Cir. 2006).
Any prejudice here was fair. Once the district court removed the inflammatory
comments about Columbine and Virginia Tech, the remaining excerpts posed little risk that the
jury would convict Moody on the basis of his general character. Rather, they showed Moody
possessing a firearm while he engaged in the charged crime, in the precise house and during the
precise period alleged in the indictment. The excerpts thus tended to prove that Moody actually
committed the crimes charged. That is the definition of probative evidence, not of unfair
prejudice. See Black’s Law Dictionary, 677 (10th ed. 2014). The district court did not abuse its
discretion by admitting the video excerpts.
B.
Next, Moody argues that the district court’s charge to the jury included two errors related
to the video. First, he contends that the district court failed to include a Rule 404(b) instruction.
For the reasons explained above, however, the video excerpts were not 404(b) evidence and thus
the district court had no need to instruct the jury to that effect.
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Moody also contends that the district court’s instructions “allow[ed] the prosecutor” to
urge the jury “to find [Moody] guilty of the charges in the statute of limitation[s]” because
“Moody was a drug dealer before the statute of limitations[.]” But the district court said the
opposite: “[A] conviction cannot be based upon conduct that occurred before [the statute of
limitations] date. You may consider [Moody’s] conduct prior to the statute of limitations to
evaluate [his] conduct within the statute of limitations and whether the conduct within the statute
of limitations establishes [his] guilt beyond a reasonable doubt.” R. 2663 at 191-92. The district
court further warned the jury that it “[could] not use any pre-statute of limitations conduct for
any other purpose.” Id. Those instructions were correct, and Moody’s argument is meritless.
C.
Finally, Moody argues that the district court erred by admitting audio recordings of
jailhouse phone calls as admissions by co-conspirators without first finding that the declarants
actually were co-conspirators, as required under Federal Rule of Evidence 801(d)(2)(E). See
United States v. Enright, 579 F.2d 980, 987 (6th Cir. 1978). But the district court did not admit
these conversations as statements by co-conspirators. When Moody’s counsel made the same
objection at trial, he conceded that the alleged co-conspirators were just “making a plan to go
steal somebody’s dope.” R. 2661 at 12. The government agreed, and explained that the
statements were thus admissible under the hearsay exception for statements of a then-existing
mental condition because they expressed “motive, intent, or plan.” See Fed. R. Evid. 803(3).
The district court seemed to agree with the government and overruled the objection without
further comment. The district court did not abuse its discretion by declining to make findings
under a rule on which it did not rely.
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* * *
The district court’s judgment is affirmed.
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