United States District Court, D. Columbia.
For PAUL MOORE, JR., Defendant: Nathan I. Silver, II, LEAD ATTORNEY, LAW OFFICES OF NATHAN I. SILVER, Bethesda, MD.
For USA, Plaintiff: Angela S. George, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Criminal Division, Washington, DC; Peter C. Lallas, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
JOHN D. BATES, United States District Judge.
Plainclothes police officers approached defendant Paul Moore while he stood outside drinking in " Simple City," a public housing project in Washington, D.C. Moore (maybe seeing the officers, maybe not) ran away. But he did not make it very far. The police chased him, picked up a gun that fell from his waistband when he went over a fence, caught him, and searched him, finding nineteen plastic baggies of crack cocaine and five ecstasy pills. Now, on the eve of his trial for, among other things, being a felon in possession of a firearm and possession with intent to distribute cocaine base, Moore hopes to keep this physical evidence from the jury. The government opposes Moore's motion and has filed two of its own: one seeking to admit evidence of Moore's prior crimes for purposes of proving his intent, knowledge, absence of mistake, etc.; and another seeking to admit similar evidence for purposes of impeaching him should he choose to testify at trial. Upon consideration of the parties' filings, the arguments presented at a motions hearing held on November 14, 2014, and the applicable law,
and for the reasons explained below, the Court will deny Moore's motion and grant both of the government's motions.
On the evening of November 13, Moore was standing in a parking lot with several other men. An undercover officer observed the men drinking what " appeared to be . . . alcoholic beverages in public." Ex. 1 to Def.'s Mot. [ECF No. 25-1] (" Lally Aff." ) at 2; see also Nov. 14, 2014 Mot. Hr'g Tr. [ECF No. 35] (" Tr." ) at 8. The officer also saw one man " manipulating his waistband or adjusting an object in his waistband." Tr. at 12. At least two unmarked police cars soon arrived on the scene to investigate the undercover officer's suspicions, and several officers exited these vehicles. The officers were in " plainclothes," but they also wore tactical vests over their clothes that bore the word " POLICE" on the front and back in large, white letters. Id. at 11, 31-32. As Officer Kevin Lally approached the group of men, he saw Moore " grab at his waistband and turn away from the officers," a movement that Lally considered to be consistent " with the characteristics of an armed gunman." Lally Aff. at 2; see also Tr. at 16.
Before any of the officers could reach Moore, he " began to flee on foot in a full sprint away from the officers." Lally Aff. at 2; see also Tr. at 16. The police gave chase, one of them yelling commands like " Stop! Police!" as he ran. Lally Aff. at 2; see also Tr. at 75. But Moore ignored these orders, either because he did not hear them, or because he did not care to heed them. He instead hopped a chain-link fence, which caused the gun he was carrying to fall to the ground. Tr. at 19, 20-21. Officer Lally--the closest of the pursuers--" observed and heard" the (fully loaded) semi-automatic pistol hit the concrete, picked up the pistol, and continued chasing Moore. Lally Aff. at 2; see also Tr. at 20-21. Moore successfully scaled a second fence before four police officers cut off his escape and apprehended him. See Tr. at 24-25.
The officers then searched Moore. They found nineteen small plastic bags containing a white, rock-like substance that field-tested positive for cocaine, five yellow pills that were later determined to be ecstasy, and $339 in " small denominations that are consistent with earnings of street-level narcotics trafficking." Lally Aff. at 2; see also Tr. at 25, 49. After a records check revealed that Moore had previously pled guilty to two 2008 felony charges (possession with intent to distribute ecstasy and cocaine), the officers arrested Moore for being a felon with a firearm. Lally Aff. at 2.
It turns out that Moore's run-ins with the law extend beyond these 2008 convictions. He pled guilty to attempted possession with intent to distribute marijuana following a January 2002 encounter with police. Gov't's 404(b) Mot. at 2-3. He pled guilty to armed robbery and use of a handgun during the commission of a crime of violence following an October 2002 incident. Id. at 3-4. A difficult year for Moore continued when he pled guilty to unlawful possession of a firearm with an obliterated serial number after United States Marshals searched his apartment in November 2002. Id. at 4-5. And most recently, in June 2014, Moore pled guilty to attempted uttering (that is, check forgery). Gov't's 609 Supplemental Mot. at 2.
A grand jury charged Moore with unlawful possession with intent to distribute
cocaine base, simple possession of a controlled substance, unlawful possession of a firearm and ammunition by a convicted felon, and using, carrying, and possessing a firearm during a drug-trafficking offense. See Indictment [ECF No. 1] at 1. With trial for these charges on the horizon, the parties have filed several motions. First, Moore hopes to suppress the " tangible evidence" recovered during and after the November 13 chase--namely, the gun he dropped and the drugs police found in his pockets. And second, the government wants to use evidence of Moore's prior crimes in two ways: for its case-in-chief under Federal Rule of Evidence 404(b), and for impeachment purposes under Rule 609. The Court will consider each motion in turn.
I. Motion to Supress Tangible Evidence
The Fourth Amendment protects " [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Warrantless searches are " per se unreasonable under [that Amendment] . . . subject only to a few specifically established and well-delineated exceptions." Katz v. United States,389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Moore argues that the November 13 warrantless seizure of his gun and drugs falls into the " unreasonable" category. But he ...