In United States v. Moore, No. 21-12291 (Aug. 11, 2023) (Lagoa, Brasher, Ed Carnes), the Court affirmed Mr. Moore’s conviction and sentence.

Mr. Moore was charged with one count of being a felon in possession of a firearm.  He proceeded to trial and asserted a justification defense.  He was found guilty and sentenced to 80 months imprisonment.

Mr. Moore first challenged the district court’s denial of his motion for a judgment of acquittal or new trial based on his justification defense. The Court rejected his challenge, and affirmed his conviction.  In so doing, the Court clarified the different standards that apply for granting a judgment of acquittal versus a new trial.  For a Rule 29(a) motion for a judgment for acquittal, the evidence is viewed in the light most favorable to the prosecution and all reasonable inferences and credibility choices are drawn in its favor.  For a Rule 33(a) motion for a new trial, the district court may weigh the evidence and consider the credibility of the witnesses, but reversal of a jury’s verdict is reserved for really exceptional cases in which evidence of guilt, although legally sufficient, is thin and marked by uncertainties and discrepancies.  That is, a new trial is justified “if, but only if, the evidence preponderates so heavily against the jury’s verdict that it would be a miscarriage of justice to let the verdict stand.”

The Court next rejected Mr. Moore’s challenge to the district court’s allowing the government to question him about two prior convictions that were more than 10 years old–one from 2005 and another from 2006.  In analyzing Fed. R. Evid. 609(b)’s ten-year line, the Court joined the Fifth, Seventh, and Eighth Circuits in holding that the ten-year stale-by measurement under the rule begins to run at the witness’s release from any physical confinement (and is not delayed by a period of probation, as the district court had erroneously found).  But, any error in the admission of the prior convictions was harmless.

Third, the Court held that the district court acted within its discretion when it allowed the government to refresh the girlfriend’s recollection by showing her, before she was questioned about it, a copy of her written statement to the police.

Fourth, the Court held that the district court acted within its discretion when it admitted evidence of Mr. Moore’s domestic abuse of his girlfriend.  The Court rejected Mr. Moore’s arguments that the domestic incidents were too remote in time and too unrelated to the later altercations to be relevant to his justification defense.

Fifth, the Court held that the district court acted within its discretion when it refused to allow defense counsel to ask the girlfriend if she had told Mr. Moore that one of the individuals he believed was breaking into the home had a juvenile conviction in Texas for murder. Mr. Moore argued that his knowledge of the prior violent act was important to his justification defense, but the Court disagreed.

Sixth, the Court held that the district court acted within its discretion when it answered a question from the jury.

Finally, the Court affirmed Mr. Moore’s sentence.  It found no clear error in the district court’s denial of a two-point reduction for acceptance of responsibility, and no clear error in the district court’s application of an enhancement to Mr. Moore’s base offense level on the ground that his possession of the firearm was in connection with another felony offense.