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United States v. Moon

United States Court of Appeals, First Circuit

September 18, 2015

TERRANCE MOON, Defendant, Appellant


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Derege B. Demissie for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief for appellee.

Before Selya, Circuit Judge, Souter,[*] Associate Justice, and Lipez, Circuit Judge.


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LIPEZ, Circuit Judge.

Appellant Terrance Moon challenges his conviction for being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), on numerous evidentiary grounds. He also challenges his sentence

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under the Armed Career Criminal Act (" ACCA" ). Finding no merit to any of these challenges, we affirm.


A. Factual Background

The following facts are undisputed. On February 5, 2011, Detective Michael Ross obtained search warrants for Moon's person and an apartment at 99 Ormond Street in Boston. In his supporting affidavit, Ross stated that, based on information from a confidential informant (" CI" ) who previously purchased heroin from Moon, the Boston Police Department (" BPD" ) had conducted surveillance of three recent controlled buys by this CI from Moon, including one within the " last seventy-two hours." Ross stated that during that most recent transaction, Moon was spotted driving a green Mercedes that was registered to Sherrica Hendricks, his longtime girlfriend, at 99 Ormond Street, Apartment #1, in Mattapan.[1]

The next day, officers arrived at 99 Ormond Street to execute the search warrants. Detective Ross and Sergeant Detective Paul Murphy observed Moon exit 99 Ormond Street, walk down the street to meet with an unknown individual, and return to the building. The officers approached Moon, read him his Miranda rights and searched his person, recovering, among other things, a set of keys. The officers told Moon they had a search warrant for his apartment at 99 Ormond Street, but Moon denied that he lived at that location. When Ross told Moon he had just seen him leaving the building, Moon admitted he lived there. Officer Steven Smigliani arrived at the scene and placed Moon in the back of his cruiser while Ross and Murphy searched Moon's apartment. Ross opened the apartment with the keys he had recovered from Moon's pocket. Moon was escorted into the apartment, where Ross showed him a copy of the search warrant and asked if there were any drugs in the apartment. Moon responded that there were some drugs on a nightstand in a red box in his downstairs bedroom.

During the subsequent search of Moon's bedroom, the officers found plastic bags containing what appeared to be crack cocaine and heroin in a small, red box on the nightstand, and a larger bag of heroin within a large bag of rice in the nightstand. The officers found another bag containing heroin packed in rice under the bed, and in various locations around the room they discovered drug paraphernalia: a scale with drug residue (found inside the nightstand), a box of plastic baggies, several cut-off baggies, a plate with a razor blade on it, a spoon, and a sifter. Under the mattress on the bed, the officers found a Sturm, Ruger & Co. Model Service-Six .357-caliber revolver loaded with six rounds of ammunition. The officers also found documents bearing Moon's name in the bedroom, including his birth certificate, resume, and prescription medication.

The officers reported the firearm and ammunition to Officer Smigliani, who was by then at the police station with Moon. Smigliani notified the booking officer to add a firearm and ammunition charge to the drug charges already being processed.

B. Procedural Background

1. The Indictment

On June 8, 2011, a federal grand jury returned a multi-count indictment charging

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Moon with possession with intent to distribute heroin and cocaine, in violation of 21 U.S.C. § 841(a) (Counts One and Two); being a felon[2] in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1) (Count Three); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count Four). The government voluntarily dismissed the drug trafficking counts after learning that the substances had been tested by a state laboratory chemist who had used improper techniques.[3] The case thus moved forward with only the single felon-in-possession charge.

2. Pre-Trial Motions

Moon unsuccessfully filed a series of pretrial motions seeking to suppress evidence concerning the drugs and drug paraphernalia found at his apartment and to obtain copies of affidavits prepared by BPD officers about the CI and the controlled buys. He requested a Franks hearing to probe the veracity of Detective Ross's affidavit and its adequacy to support the search warrants executed at his apartment. See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). He also renewed a previously filed motion for discovery of any exculpatory evidence regarding the CI, as well as the exact dates and times of the controlled buys. The district court denied both motions.

Moon also moved in limine under Federal Rules of Evidence 404(b) and 403 to exclude testimony regarding the heroin and crack cocaine found in his bedroom and his statements to the officers regarding the drugs, contending that such information would be unfairly prejudicial evidence of uncharged conduct. In opposing the motion, the government stated that it intended to introduce evidence showing where the drugs and drug-related items were found in Moon's apartment because that information went " directly to proving the element of knowing possession of a firearm, including by way of showing motive." The government also explained that the recovery of cocaine and heroin from the red box on the nightstand -- where Moon said drugs could be found -- provided " direct and powerful evidence of defendant's dominion and control over the very room in which the firearm at issue lay."

The district court denied the motion, finding the drug evidence had special relevance under Rule 404(b) to prove Moon's knowledge of and dominion over the firearm. After conducting its Rule 403 balancing, the court held that the probative value of the drug evidence was not outweighed by any threat of unfair prejudice. The court proposed to give the jury a limiting instruction at the time the drug evidence was introduced.

In early January 2013, as his trial approached, Moon moved for an order requiring the government to furnish any exculpatory evidence regarding the CI to the district court for in camera review. He argued that the government's intention to introduce evidence depicting him as a drug dealer, based on " purported controlled buys," " entitled [him] at a minimum, [to] an in camera review [of] the requested evidence prior to his trial." Moon clarified that he was " not request[ing] disclosure of the information but rather an in camera review by the Court to verify the Informant's existence and his or her actual participation in the controlled buys." He claimed that such a review was necessary because " various allegations of misconduct"

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against Detective Ross and Sergeant Detective Murphy, resulting in " 'not sustained' or 'exonerated' dispositions[,] . . . raise substantial questions as to potential irregularities" in the BPD investigation. He further argued that he was entitled to the requested discovery under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The district court heard argument on the motion at the pretrial conference, during which Moon's counsel emphasized " we're not asking for disclosure" and " we're not asking them to disclose it to us." After confirming that the government did not intend to call the CI ...

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