United States of America v. Darrick Moore

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 03-2698
UNITED STATES OF AMERICA
v.
DARRICK MOORE,
Appellant
APPEAL FROM THE UNITED
STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA
D.C. Crim. No. 02-cr-00097
District Judge: The Honorable Yvette
Kane
Argued: February 24, 2004
Before: RENDELL, BARRY, and
ROSENN, Circuit Judges
(Opinion Filed: July 14, 2004)
James J. West, Esq. (Argued)
West Long
105 North Front Street
Suite 205
Harrisburg, PA 17101
Attorney for Appellant
James T. Clancy, Esq. (Argued)
Office of the United States Attorney
Federal Building
228 Walnut Street
P.O. Box 11754
Harrisburg, PA 17108
Attorney for Appellee
OPINION OF THE COURT
BARRY, Circuit Judge
We begin with the closing argument
of the prosecutor:
[ S ] t a n d i n g h e r e
k n o w i n g w h a t d a t e
[September 10, 2002] today
is I am very, very reluctant
to use the term I’m going to
use, but, frankly, I think this
defendant warrants that
term, and that term is
terrorist.
There are many
different kinds of terrorists.
We all know too well the
kinds of terrorists that
caused the attacks of the
anniversary so-to-speak we
will mark tomorrow. But
there are very different
kinds of terrorists, and I

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think this defendant is one
of them.
As you heard the
evidence today, I think this
evidence can show you that
he inflicted terror upon
Belinda Newcomer and her
fa m ily, upon Brittany
N e w c o m e r a n d u p o n
Belinda’s son Brandon
Newcomer.
You heard testimony
that he was forcing kids to
do drug transactions for
him. What kind of person
does that?
173a.
The kind of person that does that,
is, of course, a very bad person. Indeed,
the government’s hyperbolic closing
argument crowned its trial strategy of
pillorying defendant Darrick Moore before
the jury. This fact, and fact it be, is best
exemplified by the prosecutor’s direct
examination of the government’s key
witness, Belinda Newcomer, through
whom he elicited the many ways in which
Moore was physically violent, seriously
injuring both her and her son. It was also
seen when the prosecutor, on redirect
examination of Belinda’s thirteen year old
daughter, Brittany, elicited testimony that
Moore punched, kicked and choked her
after she refused to sell drugs for him.
Given all of this, could anyone disagree
with the government that Moore was a bad
man if not some species of “terrorist”?
Surely the jury did not; it returned a guilty
verdict after only twenty-eight minutes of
deliberations.
Before placing our stamp of
approval on the jury’s verdict, however,
we must consider the issues that Moore
raises on appeal, and that the government,
defense counsel,1 and the District Court
simply ignored: Moore was not charged
with forcing children or anyone else to
deal drugs. Neither was he charged with
assault. Nor drug possession. Nor child
abuse. Nor terrorism. In fact, Moore was
not on trial for anything he may have done
to Belinda or her family.
Moore was on trial for arson, in
violation of 18 U.S.C. § 844(i), and for
possession of a firearm by a previously
convicted felon, in violation of 18 U.S.C.
§§ 922(g) and 924(a)(2). Any observer with
even an elemental understanding of the
Federal Rules of Evidence should have
wondered how the wide-ranging testimony
about drugs, domestic violence, and child
abuse was appropriate in an arson and gun
possession trial. Moreover, what
justification could the prosecutor have had
for raising the specter of September 11th
and calling M oore a terrorist? We cannot
conceive of any. We will reverse the
judgment and sentence, and grant a new
trial.
I. Background
1Different counsel was appointed to
represent Moore on this appeal, and has
ably done so.

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On Christmas Eve of 2001, a fire
occurred at an apartment building located
at 455 North Beaver Street in York,
Pennsylvania, and a boy was injured. In
mid-February of 2002, Belinda Newcomer,
Moore’s ex-girlfriend, came forward to
identify Moore as the person responsible
for the fire. In April, in the U.S. District
Court for the Middle District of
Pennsylvania, Moore was charged in a two
count indictment with arson resulting in
personal injury and with possession of a
firearm by a convicted felon.
Brittany Newcomer, Belinda’s
daughter, was the first of four witnesses to
testify for the government. On direct
examination, Brittany testified that she saw
Moore with a gun when he lived with her
mother. She further testified that Moore
warned her not to tell her mother about the
gun or he would hurt her. On cross-
examination, defense counsel asked
Brittany why she had waited so long
before telling her mother about the gun.
Brittany replied that she feared being hurt
by Moore. On re-direct, the prosecutor
asked Brittany if Moore had hurt her in the
past. Brittany responded that he had hurt
her because she had refused to sell drugs
for him. Presumably on the ground that
Moore had now been called a drug dealer
who used children to sell his drugs,
defense counsel objected: “[t]his is far
beyond cross-examination, and it’s beyond
the scope of this trial.” The prosecutor
countered only that the defense had made
an issue of why Brittany had waited so
long to tell her mother about the gun. The
District Court agreed, and overruled the
objection. The prosecutor then proceeded
to elicit from Brittany that Moore had
punched, kicked, and choked her when she
refused to sell drugs. On re-cross, Brittany
offered that Moore not only wanted her to
sell drugs for him, but also wanted her
mother and brother to do so.
Belinda Newcomer took the stand
after her daughter. Belinda began her
testimony by describing the nature of her
relationship with Moore. She testified that
he was in anger management classes; that
her relationship with him was “very
violent”; that he was a “very hostile man”;
that he was a habitual drug user; that he
threw her down a flight of stairs with the
result that she was hospitalized in critical
condition; that he repeatedly punched her
in the face; that he severely beat her son,
cracking three of his ribs and leaving scars
on his face and neck; that her son was
taken by Child Services for fear that he
would again be hurt by Moore; and that
she feared for her life and the lives of her
children. Defense counsel at no point
objected and the District Court did not
intervene.
Having set the scene with her
description of Moore’s violent behavior,
Belinda turned to the events which took
place on Christmas Eve. She testified that
Moore awoke her (the two were at that
time living together) and asked her to drive
him to a location he did not then disclose.
She agreed to do so. Moore first directed
Belinda to a gas station, where he filled a
red plastic gas can with fuel, and they then
drove to 455 North Beaver Street. Moore

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got out of the car with the gas can,
instructed Belinda to stay in the car, and
disappeared behind the building. Minutes
later, he came running back, smelling of
gasoline, and instructed her to drive them
away. As they drove off, Moore remarked
to Belinda that he had finally gotten even
with “someone he had been angry at and
that no one is going to ‘f’ with ‘D.’”
Two other witnesses took the stand.
Melissa Strunk Layer, who was then
incarcerated on drug charges, testified that
she knew Moore from dealing in crack
cocaine. She had not seen Moore since
having a disagreement with him about the
purchase of $20 of crack. Presumably, it
was this dispute that motivated the arson:
on Christmas Eve of 2001, Melissa Strunk
Layer lived at 455 Beaver St., the location
of the fire.
Finally, York City Police Officer
Troy Cromer offered into evidence a gun
retrieved by police from Moore’s former
place of employment, a gun that fit the
description given by Belinda and Brittany
of the gun to have been in Moore’s
possession. Officer Cromer–qualified at
trial as an expert investigator of the origins
and causes of fire–also testified that the
fire was set intentionally, and that a red
plastic gas can was recovered from the
scene.
The government rested its case, and
Moore followed suit without calling any
witnesses. Closing arguments were then
presented to the jury. The prosecutor
launched into his closing argument by
calling Moore a terrorist. Again, no
objection was made by defense counsel.
The Court then instructed the jury,
and the verdict was returned in twenty-
eight minutes.
II. Discussion
Moore urges us to overturn his
conviction on two grounds.2 First, he
contends that the District Court improperly
admitted the testimony of Brittany and
Belinda Newcomer concerning his alleged
prior bad acts, in violation of Federal Rule
of Evidence 404(b).3 Second, he contends
2Moore filed a timely notice of appeal.
We have jurisdiction under 28 U.S.C. §
1291 and 18 U.S.C. § 3742.
3
Federal Rule of Evidence 404(b) provides:
Other crimes, wrongs, or
acts. Evidence of other
crimes, wrongs, or acts is
not admissible to prove the
character of a person in
order to show action in
conformity therewith. It
m a y , h o w e v e r , b e
a d m i s s i b l e f o r o t h er
purposes, such as proof of
motive, opportunity, intent,
p r e p a r a t i o n , p l a n ,
knowledge, identity, or
absence of mistake or
accident, provided that upon
(continued...)

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that the prosecutor’s closing argument
unfairly prejudiced him.
A. Standard of Review
The Federal Rules of Evidence
require a timely and specific objection to
evidence erroneously admitted. Fed. R.
Evid. 103(a)(1). Where an objection is
properly made, we review a district court’s
ruling for abuse of discretion. United
States v. Givan, 320 F.3d 452, 463 (3d Cir.
2003). Where, however, a party fails to
object in a timely fashion or fails to make
a specific objection, our review is for plain
error only. United States v. Boone, 279
F.3d 163, 188 (3d Cir. 2002). See also
United States v. Sandini, 803 F.2d 123,
126 (3d Cir. 1986) (holding that failure to
object with specificity does not preserve a
Rule 404(b) issue for appeal). It is well-
settled that to establish plain error, a
defendant must show “(1) error, (2) that is
plain, and (3) that affects substantial
rights. If all three conditions are met, an
appellate court may then exercise its
discretion to notice a forfeited error, but
only if (4) the error seriously affects the
fairness, integrity, or public reputation of
judicial proceedings.” Johnson v. United
States, 520 U.S. 461, 467 (1997) (citations
and quotation marks omitted). See also
United States v. Plotts, 359 F.3d 247, 249
(3d Cir. 2004) (“Under plain error review,
we may grant relief if (1) the District Court
committed an error, (2) it was plain, and
(3) it affected substantial rights of the
defendant.”) (citation and quotation marks
omitted).
Similarly, a failure to sustain an
objection to a prosecutor’s closing
argument is typically reviewed for abuse
of discretion. United States v. Molina-
Guevera, 96 F.3d 698, 703 (3d Cir. 1996).
But, again, defense counsel never said a
word when his client was likened to one of
the September 11th terrorists, nor did the
District Court. And so, again, the standard
of review is plain error. United States v.
Tiller, 302 F.3d 98, 105 (3d Cir. 2002).
B. Plain Error Pervaded the Trial
Inadmissible evidence and highly
inflammatory statements came rolling in
unimpeded at Moore’s trial, without any
hesitation by the prosecutor, complaint by
defense counsel, or correction by the
District Court. Indeed, at only one point
when irrelevant but enormously prejudicial
evidence and wholly inappropriate
statements came before the jury did
3(...continued)
request by the accused, the
prosecution in a criminal
c a s e s h a l l p r o v i d e
reasonable notice in advance
of trial, or during trial if the
court excuses pretrial notice
on good cause shown, of the
general nature of any such
evidence it intends to
introduce at trial.

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defense counsel object,4 and that objection
was not at all specific. His failure to
object, of course, did not relieve the
prosecutor of his duty to comply with the
Federal Rules of Evidence and, even more
importantly, rules of fundamental fairness.
There was a serious breakdown here.
As for the evidence of M oore’s
“Other Crimes, Wrongs, or Acts,” i.e., the
Rule 404(b) evidence, which came in
principally through Belinda and Brittany
Newcomer, let us be quite clear. We are
not reviewing the District Court’s decision
to admit this evidence, because the
evidence came in bereft of any motion to
admit; bereft of any prior notification of
the general nature of the Rule 404(b)
evidence the government intended to
introduce; bereft of any objection by
defense counsel; and bereft of any exercise
of control on the part of the District Court.
Indeed, Rule 404(b) never once came up
during the course of trial until the District
Court sua sponte (because neither defense
counsel nor the government had submitted
a proposed jury instruction as to 404(b)),
asked during the charge conference
whether there was any need to instruct the
jury regarding M oore’s “prior crimes or
bad acts.” Counsel both agreed that that
would be appropriate.
When the instruction was given to
the jury, however, the District Court stated
that the testimony that Moore “committed
some acts other than the ones charged in
the indictment” was permitted “only as
background to the events at issue here,”
and could be considered only for that
purpose and not as evidence that he
committed the crimes with which he was
charged. Parenthetically, we are unaware
of any case under Rule 404(b) that would
permit the use of the type of evidence seen
here as “background,” and the government
has proffered none. At the conclusion of
the charge, the prosecutor asked the
District Court to further instruct the jury,
as the government puts it here, that “many
of [Moore’s] statements and actions
provided proof of motive for the arson.”
Appellee’s Br. at 11-12. Defense counsel,
albeit “reluctantly,” agreed, and the
District Court so instructed the jury.
Putting aside the virtual silence as
to Rule 404(b) during the course of trial, in
order to be admissible under 404(b), “(1)
the evidence must have a proper purpose
under Rule 404(b); (2) it must be relevant
under Rule 402; (3) its probative value
must outweigh its potential for unfair
prejudicial effect under Rule 403; and (4)
the Court must charge the jury to consider
the evidence only for the limited purpose
for which it is admitted.” United States v.
Vega, 285 F.3d 256, 261 (3d Cir. 2002)
(citing, among others, Huddleston v.
United States, 485 U.S. 681, 691-92
(1988)). The evidence here, at least that
4The sole objection, difficult as it may
be to believe, was during Brittany’s re-
direct, to wit: “This is far beyond cross
examination, and it’s beyond the scope of
this trial.” 30a.

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evidence elicited from Belinda,5 fails each
and every one of these requirements.
Rather, what is crystal clear is that the
evidence came in for one reason and one
reason only: to demonstrate Moore’s
propensity to act in a particular manner,
i.e., to be a very violent man, whose
violence made the arson and the gun
possession more likely. Admitting
evidence of other bad acts for this purpose
is, of course, prohibited. See, e.g., Ansell
v. Green Acres Contr. Co, 347 F.3d 515,
520 (3d Cir. 2003) (“Rule 404(b) . . .
prohibits the admission of other acts
evidence for the purpose of showing that
an individual has a propensity or
disposition to act in a particular manner.”).
Were there any doubt that admitting
evidence of the numerous other bad acts
alleged to have been committed by Moore
would alone require reversal, the
compounding effect of the prosecutor’s
inflammatory closing argument forecloses
any argument that reversal is not
warranted. Thus, on the eve of the one
year anniversary of the September 11th
terrorist attacks, the prosecutor called
Moore a terrorist. No, said the prosecutor,
Moore was not one of those terrorists, but
“there are very different kinds of terrorists,
and I think this defendant is one of them.”
Why? Because “he inflicted terror upon
Belinda Newcomer and her family, upon
Brittany Newcomer and upon Belinda’s
son Brandon Newcomer. . . . [H]e was
forcing kids to do drug transactions for
him. What kind of person does that?” The
prosecutor marshaled the most damning of
the 404(b) evidence and emphasized it to
the jury. Why should the jury convict?
Because, he explained, of what Moore did
to the Newcomers. He is, in a nutshell, a
bad man who should be stopped at all
costs.
Moore was not, of course, on trial
for anything he did to the Newcomers.
But yet again, there was no objection from
defense counsel, and the District Court did
not intervene. Indeed, the Court, in the
course of denying Moore’s motion for a
new trial based on the prosecutorial
misconduct inherent in the closing
argument, remarked:
[T]he government produced
ample evidence which, if
believed by the jury, would
support [the prosecutor’s]
argument that Defendant
used terror to coerce [and
the] characterization of
Defendant as one who used
terror to coerce was within
accepta ble b o unds o f
advocacy for conclusions
the jury could adopt from
the evidence presented.
5Given the prejudicial nature of the
testimony elicited from Belinda on direct
examination, we do not pause to also
discuss the challenged portion of
Brittany’s testimony nor to determine
whether defense counsel opened the door
to the purported rehabilitation of Brittany
that followed.

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But the evidence that the Court found
“ a c c e p t a b l e ” w a s p r e j u d i c i a l ,
administering the death blow to the closing
argument, which tracked that evidence.
We have reversed convictions
where “[t]he object, or at least effect, of
this disproportionate emphasis by the
prosecution . . . was to portray [the
defendant] as . . . violence-prone . . . [and]
a danger to society and who needed to be
removed for the protection of the public.”
United States v. Himelwright, 42 F.3d 777,
786 (3d Cir. 1994). In Himelwright,
although operating under an abuse of
discretion standard of review, we reversed
a conviction due to concerns that the
government’s emph asis on 404 (b)
evidence in its closing argument tainted
the trial in two regards: “First, it had the
potential for frightening the jury into
ignoring evidence that otherwise might
have raised a reasonable doubt . . . .
Second, if the jury was persuaded that [the
defe ndan t] was violence-prone by
character, it might have inferred that he
intended violence in this particular
instance. That inference is precisely what
Rule 404(b) prohibits.” Himelwright, 42
F.3d at 786 n.8. See also United States v.
Morley, 199 F.3d 129, 137-38 (3d Cir.
1999) (“This frontal assault upon the
defendant’s character is simply not
appropriate under our system of laws, and
the trial court abused its discretion in
admitting it.”). Plain error was committed
here.
First, there can be no doubt that
error was committed. The Federal Rules
of Evidence are clear and unambiguous on
this matter: irrelevant and prejudicial
evidence is inadmissible. The evidence at
issue here–Moore’s alleged violence, drug
use, and general criminal proclivity–was
highly prejudicial and wholly irrelevant to
the arson and gun possession charges he
faced. Second, the error was plain,
stigmatizing M oore for b ehav ior
unconnected to those charges. Finally, we
are certain that the error affected M oore’s
substantial rights. We cannot know, given
the evidence that came in, whether Moore
was convicted because the jury believed
him to be an arsonist and the illegal
possessor of a gun, or because it thought
him to be a violent and dangerous man, a
“terrorist” of sorts. We are inclined to
believe the latter. Such uncertainty in the
face of plain error “seriously affect[s] the
fairness, integrity or public reputation of
judicial proceedings.” United States v.
Atkinson, 297 U.S. 157, 160 (1936). See
generally United States v. Olano, 507 U.S.
725, 734-36 (1993) (discussing plain
error).
III. Conclusion
Whether we apply the constitutional
harmless error doctrine that requires a
showing by the government that the error
was harmless beyond a reasonable doubt
or the non-constitutional harmless error
doctrine that requires a showing that it is
highly probable the error did not contribute
to the judgment, see Molina-Guevara, 96
F.3d at 703, we conclude that singly or in
combination, the admission of the Rule
404(b) evidence and the prosecutor’s

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closing argument require that the judgment
and sentence be reversed for plain error,
and the case remanded to the District
Court with directions to grant Moore a
new trial.
RENDELL, Circuit Judge, Concurring.
I agree with the view that plain
error occurred here by virtue of the
admission of evidence that villainized
Moore based on prior bad conduct that was
totally unrelated to the offenses charged.
I write to decry situations in which the
deficient performances of both the
prosecutor and defense counsel lead to a
predicament like the one faced by the trial
judge here, namely, when such evidence is
improperly presented by the prosecution,
and when defense counsel improperly fails
to object. While I agree that the trial judge
should have taken action here based on the
exceptionally egregious nature of the
violations of Rule 404(b), nonetheless, in
typical cases trial judges instinctively, and
usually quite properly, let the adversary
process unfold. It is understandable that
judges are inclined to leave evidentiary
issues to the attorneys to challenge or not,
as they see fit, because ours is essentially
an adversary system, and judicial
interference can have tactical implications.
The instant situation, however,
differs in degree from a normal case. The
sheer heft of the truly damaging and
irrelevant conduct, catalogued in the
majority opinion, quite probably diverted
the jury’s attention from the relevant issues
of proof. There was not just one error;
there were strings of testimony focused on
inadmissible and irrelevant prior acts. And
this testimony was not overshadowed by
overwhelming other evidence of Moore’s
guilt; in fact, the other substantive
evidence related to the crimes that were
relevant at trial was relatively thin,
consisting primarily of Belinda’s
testimony and the identification of a red
gas can. Accordingly, the trial judge’s
failure to act amounts to plain error in
large measure due to the predominance of
the problematic evidence that was
presented to the jury.
While a trial judge should not let
this happen, it is far easier for us to say so
from our vantage point, with the twenty-
twenty hindsight that we enjoy on appeal,
than it is for the judge to determine mid-
trial at what point enough is enough. It
would be a far better thing for counsel –
prosecution and defense alike – not to put
judges into this predicament in the first
instance, by adhering and policing
adherence to the Rules of Evidence. Here,
counsel utterly and inexplicably failed to
do so.

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