Rule 206 ELECTRONIC CITATION: 2004 FED App. 0231P (6th Cir.) File Name: 04a0231p.06… v. Derrick D. Moore

*Daniel M. Friedman, Circuit Judge of the United States Court of
Appeals for the Federal Circuit, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0231P (6th Cir.)
File Name: 04a0231p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DERRICK D. MOORE,
Defendant-Appellant.
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No. 02-6342
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 01-00035—Thomas B. Russell, District Judge.
Argued: March 12, 2004
Decided and Filed: July 20, 2004
Before: NELSON, MOORE, and FRIEDMAN, Circuit
Judges.*
_________________
COUNSEL
ARGUED: Larry D. Simon, SIMON & SIMON, Louisville,
Kentucky, for Appellant. Larry E. Fentress, UNITED
2 United States v. Moore No. 02-6342
STATES ATTORNEY, Louisville, Kentucky, for Appellee.
ON BRIEF: Larry D. Simon, SIMON & SIMON,
Louisville, Kentucky, for Appellant. Larry E. Fentress, Terry
M. Cushing, UNITED STATES ATTORNEYS, Louisville,
Kentucky, for Appellee.
_________________
OPINION
_________________
FRIEDMAN, Circuit Judge. The appellant Derrick D.
Moore challenges his convictions for armed bank robbery,
homicide and assault during the robbery, possessing a firearm
as a convicted felon, and possessing cocaine base. He raises
various issues: that the district court should have bifurcated at
trial the felon-in-possession charge into its component
elements of possession and felony conviction; that improper
references were made during the trial to his prior conviction;
that the prosecutor had asked a witness improper questions;
that the prosecutor improperly disclosed to a witness that the
latter had identified the wrong person at a lineup; and that the
court improperly directed a supplemental interrogatory to the
jury, to determine the amount of drugs Moore possessed, after
it had announced its guilty verdict. We decide all of these
issues against Moore and affirm his convictions.
I
The evidence, the sufficiency of which Moore does not
contest, shows the following facts: Co-defendant Tiffany
Pennington committed an armed bank robbery in Louisville,
Kentucky, during which he shot and killed a bank employee.
Pennington fled in an automobile that was abandoned in a
nearby mall. A cellular phone found in the car was traced to
Pennington. Later that afternoon, Moore contacted Richard
Jewell, and the two of them retrieved the handgun used in the
robbery from a ditch. Jewell kept the gun until it was turned
over to law enforcement officers a few days later. Ballistic

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No. 02-6342 United States v. Moore 3
tests showed that this was the gun that Pennington used
during the robbery to kill the bank employee.
Police went to the house of Moore’s girlfriend and
interviewed Moore, who stated there were no drugs in the
house. After the girlfriend consented to a search of the home,
the officers found 188 grams of a substance containing crack
cocaine.
Moore’s connection with the bank robbery, murder and
assault was two-fold. First, a few days before the robbery,
Moore asked Jewell to purchase a handgun for him. He did
so because, as a convicted felon, he could not legally himself
purchase a firearm. Shortly thereafter, Moore drove Jewell to
a pawnshop to purchase the gun; a few days later Moore and
Jewell returned to the pawnshop and received the gun and
ammunition.
Second, Moore was the driver of the getaway car, which
Moore and Pennington had stolen earlier the same day. Two
eyewitnesses identified Moore as the driver. Telephone
records showed that Moore called Pennington several times
on the morning of the robbery.
The district court severed the drug possession charge from
the other charges, and each group of charges was tried
separately to a different jury before the same judge. The
district court refused to bifurcate the felon-in-possession
charge into its component elements of gun possession and
felony conviction, and both elements were tried and
submitted to the jury together.
Pennington, who pleaded guilty, testified at Moore’s bank
robbery trial, admitting that he had robbed the bank and killed
the bank employee. He stated that he and Moore had planned
the robbery together and shared the proceeds and that Moore
had driven the getaway car.
4 United States v. Moore No. 02-6342
II
A. Prior to trial, Moore moved to bifurcate the felon-in-
possession charge because of the alleged prejudicial effect the
introduction of evidence relating to his prior conviction could
and would have on the jury. He proposed that the jury should
determine only whether he possessed a handgun, and that
only if the jury found that he had would his felony conviction
be introduced. The district court ultimately denied that
motion, reasoning that since his criminal history was relevant
to the other charges, his prior conviction would inevitably be
disclosed to the jury; therefore, reference to it in connection
with the gun possession charge would not prejudice Moore.
Moore then stipulated to his prior conviction.
The determination whether to bifurcate a particular count
lies within the discretion of the district court, and we review
a refusal to bifurcate for abuse of discretion. Several other
circuits have held that a district court’s decision against
bifurcating a felon-in-possession count is reviewed for abuse
of discretion. See, e.g., United States v. Belk, 346 F.3d 305,
310 (2d Cir. 2003) (“[A] district court’s exercise of its
discretion in refusing to bifurcate the elements of a [felon-in-
possession] charge is not reversible error.”), cert. denied, 124
S. Ct. 1474 (2004); United States v. Mangum, 100 F.3d 164,
171 (D.C. Cir. 1996) (“[W]e find that the district court did not
. . . abuse its discretion by deciding not to bifurcate the
ex-felon element and the other elements of [the
felon-in-possession count].”). In an unpublished decision,
United States v. Underwood, Nos. 95-5441/95-5442, 1996
U.S. App. LEXIS 24995 (6th Cir. Sept. 20, 1996), this court,
in upholding a district court’s refusal to bifurcate the
possession and felony elements of felon-in-possession counts,
“adopted [the] rule” of the Ninth Circuit in United States v.
Barker, 1 F.3d 957 (9th Cir. 1993), amended by 20 F.3d 365
(1994). There, in reversing a district court’s bifurcation of the
two elements of a felon-in-possession count, the Ninth Circuit
“h[e]ld that the district court may not bifurcate the single

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No. 02-6342 United States v. Moore 5
offense of being a felon in possession of a firearm into
multiple proceedings.” Id. at 959.
Although Barker appears to announce the rule that a felon-
in-possession count “may not” be bifurcated at all, other
decisions of the Ninth Circuit limit that principle to cases
involving only a single felon-in-possession charge. See
United States v. Nguyen, 88 F.3d 812, 817-18 (9th Cir. 1996).
We need not reach that issue to decide this case, however,
since we conclude that here the district court did not abuse its
discretion in refusing to bifurcate. As the district court
pointed out, the jury was going to learn about Moore’s felony
conviction apart from the felon-in-possession charge.
Investigators originally linked Moore to the bank robbery
through Jewell. Jewell had purchased the handgun used in the
bank robbery for Moore because Moore was precluded from
doing so as a convicted felon. In developing these facts, the
prosecution necessarily and inevitably would refer to Moore’s
felony conviction.
Because that conviction was independently relevant to the
proof of the bank robbery charges, the district court did not
abuse its discretion in refusing to bifurcate the felon-in-
possession count. See Fed. R. Evid. 404(b) (“Evidence of
other crimes . . . may . . . be admissible . . . as proof of . . .
intent, preparation, [or] plan . . . .”); cf. United States v. Clark,
184 F.3d 858, 868, 866 (D.C. Cir. 1999) (holding that a
district court did not abuse its discretion in refusing to sever
a felon-in-possession charge from other charges where “proof
of each crime would have been admissible in the separate
trials”).
B. Moore contends that various references at the trials to
his prior felony conviction denied him fair trials and that the
district court should have declared mistrials when those
references were made.
1. In his opening statement, the prosecutor told the jury
that they would “hear [about] a stipulation . . . that [Moore]
6 United States v. Moore No. 02-6342
ha[d] been convicted of a felony.” The prosecutor is also
alleged to have made similar references in his closing and
rebuttal statements.
We doubt that the references were improper. Because the
stipulation made it unnecessary for the prosecution to prove
an essential element of the crime, the prosecutor properly
disclosed this fact to the jury. Moreover, the prosecutor’s
reference to Moore’s prior felony conviction was no broader
than necessary to accomplish its purpose. Indeed, after
disclosing the stipulation to the jury in his opening remarks,
the prosecutor told the jury that the “details” of the conviction
were “not material . . . to this particular case.” Finally, in its
instructions to the jury, the district court admonished that they
could “only consider th[e] stipulation for the very limited
purpose of determining whether [Moore] had been convicted
of a felony offense” and were not to “consider it for any other
purpose.”
Considering “the totality of circumstances,” Kincade v.
Sparkman, 175 F.3d 444, 446 (6th Cir. 1999), these
comments by the prosecutor were not improper, the court
gave a curative instruction, and they did not deny Moore a
fair trial.
2. Detective Duncan, a lead witness for the prosecution,
testified that Moore told him during the investigation that he
met Pennington while the two were in prison together. He
also testified that “[Moore] informed me that due to previous
felony convictions[,] he was not allowed by law to purchase
a handgun[, and] that he had offered Richard Jewell money if
Mr. Jewell agreed to purchase the handgun.” As discussed
previously, this testimony was relevant to the bank robbery
charges because the police initially linked Moore to the
robbery through Jewell. Immediately after those statements,
the district court admonished the jury that “[a]ny statements
by Mr. Moore or the interviewing officer [Detective Duncan]
. . . of uncharged criminal activities . . . were introduced only
for the fact that those statements were made at that time” and

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No. 02-6342 United States v. Moore 7
were not to be considered “as any evidence that Mr. Moore is
guilty of [the] crimes charged . . . for which he is on trial.”
The prior relationship between Moore and Pennington was
relevant in proving that the two had a common plan to rob the
bank. The explanation that Moore had Jewell purchase the
gun because he was a convicted felon explained to the jury
why Moore did not purchase the gun himself.
The situation in the present case is similar to that in United
States v. Harris, where this court refused to reverse a
conviction because a prosecution witness made a passing
reference to the defendant’s prior arrest. 165 F.3d 1062 (6th
Cir. 1999). The witness, a law enforcement officer, testified
that he had located the defendant by finding his address on a
previous arrest record. Id. at 1065. This court’s statements
in rejecting the challenge to the conviction are equally
applicable to the present case:
it d[id] not appear that the government intentionally
elicited the reference to [the defendant’s] prior arrest; the
government’s line of questioning was reasonable; the
district court gave an immediate and clear limiting
instruction; the isolated allusion to the prior arrest was
not part of a pattern indicative of bad faith; and the
officer’s stray remark constituted only a minuscule part
of the evidence against [the defendant].
Id. at 1066; see also United States v. Stotts, 176 F.3d 880,
886-87 (6th Cir. 1999) (holding that a district court properly
denied the defendant’s request for a mistrial following a
witness’s statement that the defendant had a “‘an extensive
criminal record’” because “the remark was isolated and the
district court gave an immediate curative instruction”); United
States v. Terry, 729 F.2d 1063, 1070 (6th Cir. 1984) (In
determining whether improper witness statements “affected
the substantial rights of the defendant” to warrant a new trial,
the factors to be considered are whether a “curative
instruction” was sought or given, whether the references to
8 United States v. Moore No. 02-6342
prior criminal activity were detailed, and whether the
“statements were . . . of major import” when “compared with
the other evidence” against the defendant.).
3. At the separate trial of the drug possession charge,
prosecution witness deputy sheriff Kenneth Menzie, who was
present during the search of Moore’s girlfriend’s house in
which the drugs were discovered, testified that when asked
whether “there were any weapons in the house,” Moore
“replied, [‘]there’s no weapons in the house. I’m a convicted
felon, I can’t have a gun.[’]” The district court immediately
told the jury: “this testimony you just heard about the
convicted felon, completely disregard that. That had no
business being said at all. It’s irrelevant. It’s completely
irrelevant to everything. Completely disregard it.” The
district then denied Moore’s motion for a mistrial based on
that statement. As it explained:
In regard to the statement of Officer Menzie that the
defendant had a prior felony conviction, I was just
attempting to answer the Government’s question. I don’t
believe the Government intended for him to give the
answer and he didn’t know what he was going to say.
Anyway, there’s no bad faith or intentional conduct on
behalf of the Government. I think it was inadvertence.
Everyboy wished it hadn’t happened. I think it’s such a
minor part of the trial. I think my admonition will take
care of it.
Although the reference to Moore’s felony conviction was
improper in the trial of the drug possession charge, the district
court correctly denied a mistrial. The single comment, which
the court immediately admonished the jury to “completely
disregard,” did not taint the case so as to deny Moore a fair
trial. Moreover, as in Terry, the statement was not “of major
import” when “compared with the other evidence” against the
defendant. Moore had previously admitted that the drugs
found in his girlfriend’s house belonged to him.

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No. 02-6342 United States v. Moore 9
C. Moore also challenges the district court’s denial of a
mistrial following the prosecutor’s questioning of another
investigator at the bank robbery trial, Steven Wight. First, the
prosecutor asked Wight whether, during his investigation, he
had been able to eliminate as a suspect another identified
person, who Moore contended was the getaway car driver.
After sustaining Moore’s objection to the question, the court
told the jury to “ignore the question . . . like it wasn’t even
asked.” Shortly thereafter, the prosecutor asked Wight
whether certain physical evidence taken from the getaway car
was subjected to forensic analysis. Again, the court sustained
Moore’s objection and instructed the jury to disregard the
question. Moore contends that the nature of the two questions
and the proximity in which they were asked may have left the
jury with the impression that forensic testing exculpated the
person Moore alleged was the driver of the getaway car.
Here, as in the case of Moore’s objections to other
questions or statements discussed above, the district court
properly denied a mistrial. The asking of these two unrelated
questions, which the district court immediately told the jury
to ignore, did not deny Moore a fair trial.
D. In his reply brief, Moore argues for the first time that
there was prosecutorial misconduct when, shortly before trial,
the prosecution told one of the eyewitnesses to the crime who
testified at the trial that he had identified the wrong person
during a pretrial photographic lineup. Moore offers no
explanation or justification for his failure to raise this point in
his forty-page opening brief. We here follow this court’s
normal practice of “declin[ing] to consider issues not raised
in the appellant’s opening brief.” Priddy v. Edelman, 883
F.2d 438, 446 (6th Cir. 1989).
III
The drug possession charge in the indictment alleged that
Moore “knowingly and intentionally possessed with intent to
distribute 50 grams or more of cocaine base, also known as
10 United States v. Moore No. 02-6342
‘crack’ cocaine,” in violation of 21 U.S.C. § 841(a)(1) (2000).
The court instructed the jury that if it found Moore guilty of
possession with intent to distribute cocaine base, it “must also
determine the amount of cocaine base involved in this crime,”
which would be either “(1) 50 grams or more of a substance
containing a detectable amount of cocaine base,” or “(2) Less
than 50 grams” of such substance. Compare 21 U.S.C. §
841(b)(1)(A)(iii) with 21 U.S.C. § 841(b)(1)(B)(iii).
The court also instructed the jury on the lesser included
offense of simple possession of cocaine base. It told the jury
that if it found Moore not guilty of possession with intent to
distribute, it “must go on to consider whether the Government
has proven the lesser charge of possession of cocaine base.”
The court did not instruct the jury that it had to determine the
amount of cocaine base if it found Moore guilty of simple
possession – presumably because, during the court’s reading
of its proposed instructions to counsel, both of them said they
“d[id]n’t think” that if the jury “convict[ed] him of possession
. . . they need[ed] to find [the] amount.”
The jury found Moore guilty of only simple possession.
The prosecutor immediately stated that it would be necessary
that the amount of cocaine base Moore possessed be
determined because, under the governing statute, the penalty
for possession of cocaine base was greater if more than five
grams were involved. 21 U.S.C. § 844(a). Moore contended
that the government had waived this point by previously
agreeing that if the jury found only simple possession, the
amount need not be determined.
The district court, although concluding that the government
probably had waived the issue, determined that any waiver
was “correctable because the jury ha[d] not been dismissed,”
“and in looking at the greater picture of justice and the
interpretation of the statute, . . . there’s no prejudice to the
defendant by going forward at this time and determining the
amount for simple possession.” The court gave the jury a
supplemental instruction to determine whether the amount

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No. 02-6342 United States v. Moore 11
Moore possessed was five grams or more or less than five
grams. The jury again retired, and five minutes later returned,
finding that the government had proved beyond a reasonable
doubt possession of five grams or more of cocaine base.
The district court properly gave the jury the supplemental
instruction to determine the amount of crack cocaine Moore
had possessed. The procedure followed in this case to
determine that amount did not prejudice Moore. If the
original instructions had required the jury to make that
finding, the jury would have included in its original verdict
the supplemental finding it subsequently made: that Moore
possessed more than five grams of crack cocaine. The statute
provides a mandatory sentence of at least five years
imprisonment for simple possession of more than five grams
of crack cocaine. Id. The prosecutor thus correctly pointed
out that “[a] determination will have to be made at some time
of the amount for sentencing purposes” and “[w]e can
certainly put on proof as to the amount at sentencing.”
As Moore recognizes, “[t]he standard of review for a
supplemental charge to a jury under these circumstances is
abuse of discretion.” Appellant’s Br. at 39. A district court
has broad discretion to supervise, control, and determine the
issues the jury is to decide and the manner in which it is to do
so. See United States v. Hiland, 909 F.2d 1114, 1136-37 (8th
Cir. 1990) (stating that a federal district court that gave
“supplemental charge[s]” to correct a “verdict [that] was
ambiguous due to the wording of the instructions” had
“authority to require redeliberation in cases in which there
[was] uncertainty, contingency, or ambiguity regarding the
jury’s verdict”). Considering all the circumstances, the
district court did not abuse its discretion here in concluding
that the government was “entitled to have the amount
determined beyond a reasonable doubt by a jury.”
CONCLUSION
The judgment of the district court is affirmed.

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