United States v. Michael Moore, Jr. ( 2020 )

FILED
NOT FOR PUBLICATION
AUG 28 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30211
Plaintiff-Appellee, D.C. No.
3:18-cr-00040-SLG-1
v.
MICHAEL W. MOORE, Jr., AKA MEMORANDUM*
Michael Wayne Moore,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Submitted August 10, 2020**
Anchorage, Alaska
Before: RAWLINSON, MURGUIA, and R. NELSON, Circuit Judges.
Appellant Michael Moore, Jr. appeals his conviction for conspiracy to
commit robbery of a credit union, armed robbery of a credit union, and the use of
firearm in furtherance of the robbery. Moore argues that the district court erred in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
permitting a cooperating witness to testify to statements made by a co-conspirator.
Moore also contends that the government presented insufficient evidence to
establish that Moore knew that his co-conspirator would brandish a weapon during
the robbery.
“We review for an abuse of discretion the district court’s decision to admit
coconspirators’ statements, and review for clear error the district court’s
underlying factual determinations that a conspiracy existed and that the statements
were made in furtherance of that conspiracy. . . .” United States v. Moran, 493
F.3d 1002, 1010 (9th Cir. 2007), as amended (citation omitted). “An error in the
admission of hearsay evidence is harmless if it does not affect substantial rights of
the defendant.” United States v. Garza, 980 F.2d 546, 553 (9th Cir. 1992) (citation
omitted).
An argument that the district court violated a defendant’s right of
confrontation is reviewed de novo. See United States v. Carter, 907 F.3d 1199,
1204 (9th Cir. 2018). “Confrontation Clause violations are also subject to
harmless error analysis.” United States v. Allen, 425 F.3d 1231, 1235 (9th Cir.
2005) (citation omitted). We review for plain error sufficiency challenges not
raised before the district court. United States v. Bell, 770 F.3d 1253, 1256 (9th Cir.
2014). The evidence is viewed in the light most favorable to the prosecution, and
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we determine whether a “rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. (citation omitted).
1. The district court did not abuse its discretion in admitting the
testimony of cooperating witness B.C. relating a statement made to him by
Moore’s co-conspirator. Under the Federal Rules of Evidence, statements made by
a co-conspirator in furtherance of the conspiracy are admissible as non-hearsay.
See Fed. R. Evid. 801(d)(2)(E). Statements are made in furtherance of the
conspiracy when the statements “further the common objectives of the conspiracy
or set in motion transactions that are an integral part of the conspiracy. Statements
made to induce enlistment or further participation in the group’s activities are
considered to be in furtherance of the conspiracy.” United States v. Kearns, 61
F.3d 1422, 1426 (9th Cir. 1995) (citation and internal quotation marks omitted).
“It is well established that statements made by a co-conspirator need not be made
to a member of the conspiracy to be admissible under rule 801(d)(2)(E). . . .”
United States v. Zavala-Serra, 853 F.2d 1512, 1516 (9th Cir. 1988) (citations
omitted).
B.C. was not required to be a co-conspirator for the statements to be
admissible. See id. Nevertheless, Moore argues that “even if the disputed
statement need not be uttered to a member of the conspiracy, the statement still
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must be uttered to someone with some knowledge of the conspiracy if the purpose
of the statement is to further the conspiracy.” However, whether B.C. was aware
of the conspiracy is irrelevant because Pierce’s statements “set in motion a
transaction that [was] an integral part of the conspiracy,” namely, obtaining a gun
to use in the robbery. United States v. Williams, 989 F.2d 1061, 1068 (9th Cir.
1993) (citation omitted).
Ninth Circuit precedent stresses the intent of the declarant, rather than the
understanding of the non-conspirator. See e.g., United States v. Nazemian, 948
F.2d 522, 529 (9th Cir. 1991); Zavala-Serra, 853 F.2d at 1516. Thus, we defer to
the district court’s determination that the statements were made in furtherance of
the conspiracy. See United States v. Taylor, 802 F.2d 1108, 1117 (9th Cir. 1986).
Even if the district court erred in admitting the statements, the error was
harmless because Moore’s substantial rights were unaffected, as other evidence
linked Moore to the conspiracy. See Garza, 980 F.2d at 553.
2. Admission of testimony from the cooperating witness did not violate
Moore’s rights under the Confrontation Clause. Co-conspirator statements are not
testimonial. Therefore, they fall outside the parameters of the Confrontation
Clause. See Allen, 425 F.3d at 1235. Moreover, due to the other evidence of guilt,
any error in admitting the testimony was again harmless. See id.4
3. Under plain error review, there was sufficient evidence establishing
that Moore had advance knowledge that Pierce would brandish a firearm during the
robbery. Moore accompanied Pierce to B.C.’s home the day before the robbery,
where Pierce borrowed the weapon from B.C. See United States v. Goldtooth, 754
F.3d 763, 769 (9th Cir. 2014) (explaining that advance knowledge “means
knowledge at a time the accomplice can do something with it—most notably, opt
to walk away.”) (citation omitted). Further, surveillance photos outside the bank
depicted Moore and Pierce in the vehicle before the robbery. Moore exited the
vehicle with Pierce and stood over the trunk of the vehicle as Pierce retrieved a
black duffle bag.
AFFIRMED.
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