United States of America v. Maurice Dimitrie Moore

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1785
U NITED S TATES OF A MERICA,
Plaintiff-Appellant,
v.
M AURICE DIMITRIE M OORE,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:14-CR-68 — Hon. Jon E. DeGuilio, Judge.
____________________
A RGUED J ANUARY 6, 2016 — DECIDED M AY 27, 2016
____________________
Before POSNER and WILLIAMS, Circuit Judges, and
PALLMEYER , District Judge.1
PALLMEYER , District Judge. Marcus Hayden, a federal pro-
bationer, engaged in an armed battle with police on April 9,
2012. One officer was injured in the gun fight, and Hayden
himself was shot and killed. The government recovered the
1 The Honorable Rebecca R. Pallmeyer, United States District Court for
the Northern District of Illinois, sitting by designation.

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2 No. 15-1785
firearm Hayden used and has charged Defendant Maurice
Moore with selling that weapon to Hayden, a known felon,
and falsely reporting that the weapon was stolen. In Moore's
upcoming trial, the government seeks to introduce evidence
of a phone number Hayden had provided his probation of-
ficer. Moore made several calls to that number in the hours
surrounding the purported theft of the firearm. The district
judge has granted Moore's motion to exclude the probation
officer's records as inadmissible hearsay. We conclude, how-
ever, that the records are admissible under the residual hear-
say exception, Fed. R. Evid. 807, and therefore vacate the dis-
trict court's order.
I.
Law enforcement officers attempted to serve a warrant
on federal probationer Marcus Hayden on April 9, 2012. A
gun fight ensued, leaving Hayden dead and one officer in-
jured. Using the serial number of the gun they recovered
from Hayden, officers quickly identified the firearm as regis-
tered to Defendant Maurice Moore. Moore had reported the
gun, a Glock, stolen from his car on March 2, 2012. In an in-
terview with agents from the Bureau of Alcohol, Tobacco,
Firearms, and Explosives on April 10, 2012, Moore acknowl-
edged that he knew Hayden but said the two were not at all
close.
According to the government, additional investigation
revealed that Moore had a stronger connection to Hayden
than he let on. At approximately 4:30 p.m. on March 2, 2012,
Moore purchased a new gun (this one a Ruger) from a store
in Fort Wayne, Indiana. Roughly thirty minutes later, he
claims to have discovered his older weapon, the Glock, had

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No. 15-1785 3
been stolen. He called the Fort Wayne police department to
report the theft at 5:30 p.m. Shortly thereafter, he filed a sto-
len-property report at a nearby precinct, but could not recall
the Glock's serial number. He called the station at approxi-
mately 8:00 p.m. to provide the number. Before, during, and
after these events on March 2, Moore's phone placed and re-
ceived numerous calls to and from a number ending in 9312
("the 9312 number").
The government believes Hayden was on the other end
of those calls. The government seeks to offer evidence that
Hayden identified the 9312 number as his cell phone number
on a supervision report he filed with his probation officer in
February 2012.2 The report notes, as well, that Hayden ad-
mitted to having recently smoked marijuana. In signing the
form, Hayden "certif[ied] that all information furnished is
complete and correct." There is no evidence that any proba-
tion officials ever reached Hayden using the 9312 number,
but other circumstances support the conclusion that it was
his: Hayden supplied his probation officer with a new cell
number, this one ending in 6466 ("the 6466 number"), on
March 22, 2012. A Deputy United States Marshal reached
Hayden at this number sometime before his death. Phone
records indicate that Moore's phone ceased communicating
with the 9312 number on March 7, 2012. Mere hours after the
final call between the two, Moore's phone received a text
from the 6466 number for the first time. Many more calls be-
2 That number is officially registered to one Tara Wilson, but Wilson
claims that she is not familiar with the 9312 number and that she knows
neither Hayden nor Moore.

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4 No. 15-1785
tween Moore's phone and the 6466 number occurred in the
weeks that followed.
A grand jury returned a three-count indictment against
Moore in July 2014. Shortly before the scheduled trial date,
the government notified Moore of its intent to introduce
Hayden's monthly supervision reports and notes kept by
Hayden's probation officer (collectively, "the Reports").
Moore moved to exclude the Reports on hearsay grounds.
Over the government's objection, the court sided with Moore
and excluded the Reports for the purpose of "establish[ing]
that the numbers actually belonged to Hayden." This timely
interlocutory appeal followed.
II.
On appeal, the government argues that Hayden's tele-
phone number is admissible on three separate theories: (1)
as hearsay admissible under the business-records exception,
Fed. R. Evid. 803(6); (2) as hearsay admissible under the so-
called "residual exception," Fed. R. Evid. 807; and (3) as non-
hearsay for the limited purpose of establishing a connection
between Hayden and Moore.3 We turn first to the govern-
ment's Rule 807 argument, as it proves dispositive. See Unit-
ed States v. Dumeisi, 424 F.3d 566, 577 (7th Cir. 2005).
We review the district court's decision to exclude evi-
dence for an abuse of discretion, but we review its interpre-
tation of the rules de novo. United States v. Rogers, 587 F.3d
3 The government raised a fourth theory below—that the documents
were admissible as public records under Federal Rule of Evidence
803(8)—but it has abandoned that argument on appeal.

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No. 15-1785 5
816, 819 (7th Cir. 2009). Trial courts have a "considerable
measure of discretion" in determining whether evidence
should be admitted under Rule 807. United States v. Sinclair,
74 F.3d 753, 758 (7th Cir. 1996) (quoting Doe v. United States,
976 F.2d 1071, 1076 (7th Cir. 1992)). Accordingly, we will re-
verse "only where the trial court committed a clear and prej-
udicial error." Id. at 758 (internal quotation marks omitted).
A proponent of hearsay evidence must establish five el-
ements in order to satisfy Rule 807: "(1) circumstantial guar-
antees of trustworthiness; (2) materiality; (3) probative value;
(4) the interests of justice; and (5) notice.” United States v.
Ochoa, 229 F.3d 631, 638 (7th Cir. 2000) (citing United States v.
Hall, 165 F.3d 1095, 1110 (7th Cir. 1999)). Moore concedes
that the evidence in question is material and has never ob-
jected that he was given insufficient notice or that Hayden's
statements are not highly probative. The district court's de-
termination that the Reports would not serve the interests of
justice relied exclusively on its conclusion that the state-
ments contained therein were not trustworthy.
For the purposes of assessing the trustworthiness of a
hearsay statement under Rule 807, this court, in Snyder, of-
fered the following list of factors to consider:
the character of the witness for truthfulness
and honesty, and the availability of evidence
on the issue; whether the testimony was given
voluntarily, under oath, subject to cross-
examination and a penalty for perjury; the wit-
ness' relationship with both the defendant and
the government and his motivation to testify
before the grand jury; the extent to which the
witness' testimony reflects his personal

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6 No. 15-1785
knowledge; whether the witness ever recanted
his testimony; the existence of corroborating
evidence; and, the reasons for the witness' un-
availability.
United States v. Snyder, 872 F.2d 1351, 1355-56 (7th Cir. 1989).
This list is “neither exhaustive nor absolute,” but it is a
helpful guide. United States v. Doerr, 886 F.2d 944, 956 (7th
Cir. 1989). In this case, the district court's reasoning focused
on the first of these factors, to the exclusion of the other five.
Although the supervision report form signed by Hayden in-
cluded a warning that any false statements could lead to
criminal penalties, the district judge doubted that the specter
of prosecution would motivate Hayden to be truthful, be-
cause "Hayden apparently had little interest in abiding by
the law." Thus, the court concluded, Hayden's statements
memorialized in the Reports lacked sufficient guarantees of
trustworthiness to be admitted under Rule 807.
Hayden’s criminal record, though predominately one of
violent crimes rather than deception, is troublesome. Apart
from that history, however, the other Snyder factors weigh
decisively in favor of the admission of the Reports.
Several of the factors are uncontroversial: Hayden had
personal knowledge of his cell phone number; he is not
available to testify due to his death in 2012, not because of
any impropriety by the government; and he never recanted
the sworn statement that his phone number in February 2012
was (___) ___-9312. But the most important factor here is
Hayden's motivation—or lack thereof—to lie about his
phone number. The district court concluded that Hayden's
criminal history casts doubt on his motivation to tell the

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No. 15-1785 7
truth. Hayden's apparent willingness to break the law does
not explain why he would lie in this instance, however.
When Hayden identified his phone number as (___)
___-9312, he knew not only that he could be punished for
lying but that probation officers would use that number to
contact him. He knew that they would call him because they
had done so with a number he had previously reported.4
Furthermore, at the time he gave his probation officer the
9312 number, Hayden had no reason to believe that his
phone number would be integral in the criminal prosecution
of another man. In short, he had no obvious reason to lie. Cf.
United States v. Burge, 711 F.3d 803, 815 (7th Cir. 2013) (ap-
proving district court's decision to exclude hearsay testimo-
ny offered under Rule 807 where the out-of-court declarants
"had a motive to testify falsely to exculpate themselves").
Other circumstances militate in favor of admission of the
phone number Hayden reported. Most notably, we know
that he confessed to smoking marijuana in his February 2012
report and that he accurately conveyed a change in his con-
tact information in the report filed on March 22, 2012. In the
latter report, he listed a new phone number, the 6466 num-
ber, which a Deputy United States Marshal did use to con-
tact him. And the 6466 number is also corroborative in an-
other respect: Moore's phone was in frequent contact with
the 9312 number throughout the first few months of 2012.
But that correspondence ended abruptly on March 7, 2012.
Hours later, Moore's phone commenced an equally prolific
exchange with the 6466 number, a powerful indication that
4 Upon his release from prison, Hayden initially provided his probation
officer with his mother's phone number as his contact number. The of-
ficer used that number multiple times to contact Hayden.

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8 No. 15-1785
the person who owned that number was previously using
the 9312 number.
We have warned against the liberal admission of evi-
dence under Rule 807, see Akrabawi v. Carnes Co., 152 F.3d
688, 697 (7th Cir. 1998) (cautioning against the frequent utili-
zation of Rule 807, lest the residual exception become "the
exception that swallows the hearsay rule"), but in the cir-
cumstances of this case, the exception is particularly apt.
Hayden's statements in the Reports bear markers of reliabil-
ity that are equivalent to those found in statements specifi-
cally covered by Rule 803 or Rule 804. The purpose of Rule
807 is to make sure that reliable, material hearsay evidence is
admitted, regardless of whether it fits neatly into one of the
exceptions enumerated in the Rules of Evidence. That pur-
pose is served by admitting the Reports, and the district
court erred in excluding them from Moore's trial. See
Dumeisi, 424 F.3d at 577 (affirming the admission of foreign
intelligence documents under Rule 807 in the trial of defend-
ant accused of acting as an agent of the Iraqi government);
Huff v. White Motor Corp., 609 F.2d 286, 295 (7th Cir. 1979)
(vacating district court’s order excluding testimony that re-
counted statements made by plaintiff's deceased husband
regarding the car accident that gave rise to the suit because
the statements had circumstantial guaranties of trustworthi-
ness equivalent to the other hearsay exceptions).
III.
For the foregoing reasons, we vacate the district court's
order excluding Hayden's probation records and the notes of
his probation officer and remand the case for further pro-
ceedings consistent with this opinion.

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