UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal No. 18-198 (JEB)

DARIN CARLYLE MOORE, JR., et al.,

Defendants.

MEMORANDUM OPINION

The Government has charged Darin Carlyle Moore, Jr., Gabriel Brown, John Sweeney,

and James Taylor with the abduction and murder of a Maryland man as part of a conspiracy to

hold him for ransom. With trial currently set for September, Moore has filed a series of pretrial

motions. He seeks to suppress evidence obtained from the seizure of his car, see ECF No. 149

(Moore Mot. to Suppress), to sever his trial from that of his Codefendants, see ECF No. 178

(Moore Mot. to Sever), and to bar admission of purported hearsay and other-crimes evidence.

See ECF Nos. 176 (Moore Mot. in Limine); 148 (Moore Mot. to Strike). The Government,

meanwhile, asks the Court to either require Taylor’s telecommunications expert to provide a

fuller report or to preclude him from testifying altogether. See ECF No. 161 (Gov’t Mot. in

Limine). The Court will deny all of the Motions with the exception of Moore’s Motion to Strike

other-crimes evidence, which it grants in part and denies in part.

I. Background

In early 2019, a grand jury returned a five-count superseding indictment, the facts of

which, for purposes of this decision, the Court accepts as true. See United States v. Ballestas,

(D.C. Cir. 2015). On June 19, 2018, the four Defendants kidnapped and held

1 Andre Carlos Simmons, Jr., for ransom before killing him in the early hours of June 20. See

ECF No. 41 (Superseding Indictment) at 2–6. Efforts to locate and target Simmons and his

associates began a month earlier — sometime in May 2018.

at 2–3. On the evening of June

19, Simmons was abducted in Maryland before being transported to the District in Moore’s

vehicle. Id. at 3. Defendants then demanded money from his family and associates in exchange

for Simmons’s safe return. Id. at 4. After collecting the ransom, they nonetheless took Simmons

to an alley elsewhere in the District, where they repeatedly shot him to death. Id. at 4–6.

From these facts, Defendants are charged with Kidnapping (

(a)(1));

Conspiracy to Commit Kidnapping (

(c)); Using, Carrying, Possessing,

Brandishing, and Discharging a Firearm During and in Relation to a Crime of Violence (

(c)(1)(A)(ii),(iii)); and two counts of First-Degree Murder While Armed

(Premeditated and Felony Murder) (

, 22-4502, 22-2104.01(b)(1) and 22-

1805).

at 2–6.

II. Legal Analysis

This Opinion addresses five Motions, which are largely unconnected. It thus analyzes

them separately, setting out the appropriate legal standard in each.

A. Motion to Suppress re: Seizure of Nissan Maxima

Moore first moves to suppress evidence obtained from the search of his Nissan Maxima,

the car in which Simmons was allegedly taken into the District. See Moore Mot. to Suppress at

3–4. In the hours after the murder, the Maxima was towed from the site of Moore’s arrest at his

girlfriend’s residence in Maryland, where it was parked in the driveway, to the District of

Columbia Department of Forensic Sciences Lab, where it was subsequently searched. See ECF

No. 1 (Compl.), ¶¶ 10–12. Although authorities did obtain a warrant before searching the

2 vehicle, see Moore Mot. to Suppress at 2, there was no warrant at the time of the initial seizure.

See Compl., ¶ 12. Moore thus argues that the lack of a warrant bars the seizure and towing of

the vehicle. The Court disagrees. In explaining why, it separately discusses the automobile

exception to the Fourth Amendment’s warrant requirement and the independent-source doctrine.

1. Automobile Exception

The “automobile exception” allows for the warrantless search or seizure of a motor

vehicle “[i]f a car is readily mobile and probable cause exists to believe it contains contraband.”

United States v. Maynard,

(D.C. Cir. 2010) (alteration in original) (quoting

Pennsylvania v. Labron,

(1996)); see also United States v. Lawson,

(D.C. Cir. 2005) (considering whether officers had “probable cause to believe [a motor

vehicle] contain[ed] contraband or evidence of a crime”); Maryland v. Dyson,

(1999). Authorities “may either conduct an immediate search or remove the vehicle to a police

station and search it at some later time.” Lawson,

(citing Chambers v. Maroney,

(1970)).

This exception extends to cars parked in private driveways. See United States v.

Goncalves,

, 250–51 (1st Cir. 2011) (applying automobile exception to vehicle

“parked in a private driveway and unoccupied by anyone who might drive it away”); United

States v. Brookins,

, 237–38 & n.8 (4th Cir. 2003) (same). Although the

automobile exception alone does not justify intrusion onto the curtilage of a home, see Collins v.

Virginia,

(2018), Defendant argues neither that the driveway was curtilage

nor that the officers were unlawfully present at the residence to arrest Moore and to execute a

search warrant of the home. See Moore Mot. to Suppress.

3 He similarly does not dispute that authorities had probable cause to believe that there was

evidence of the kidnapping-murder in the Maxima.

In particular, police observed plastic zip-

ties in plain view on the passenger seat of the car (consistent with those used to bind the

decedent) as well as damage to the vehicle (consistent with witness accounts of the kidnapping).

See ECF No. 110 (Opp. to Mot. to Exclude Statements) at 6; Compl., ¶ 12.

That leaves only the question of whether the car was “readily mobile.” It need not be

“immediately mobile.” California v. Carney,

(1985) (“Even in cases where an

automobile [is] not immediately mobile, the lesser expectation of privacy resulting from its use

as a readily mobile vehicle justifie[s] application of the vehicular exception.”). A car is “readily

mobile” even when parked and inaccessible to a detained suspect. See, e.g., United States v.

Williams,

(D.D.C. 2012) (“The fact that the car subject to the

search . . . was parked and inaccessible to [the] defendant[,] . . . who was already under arrest at

the time the search was executed and had turned over the car keys to the police, does not render

the automobile exception inapplicable.”); Olaniyi v. District of Columbia,

,

103–04 (D.D.C. 2011) (similar); see also United States v. Young, 371 F. App’x. 358, 361 (4th

Cir. 2010) (“The inherent mobility of the car, combined with the lesser expectation of privacy in

an automobile as compared to a home or office, justify application of the exception even if the

police have control over the automobile at the time of the warrantless search.”) (citing United

States v. Kelly,

, 590–91 (4th Cir. 2010)). As a result, the fact that Moore had been

arrested when authorities seized the Maxima does not disable the ready mobility of the vehicle.

While Defendant relies on Coolidge v. New Hampshire,

(1971), to impute

an additional exigency-like requirement into the automobile exception, the Supreme Court has

rejected that approach. Pennsylvania v. Labron,

, 939–40 (1996) (reversing state

4 court’s “incorrect reading” that the automobile exception requires exigent or unforeseen

circumstances); see also Dyson,

(noting that “‘automobile exception’ has no

separate exigency requirement”). The seizure of the Maxima, moreover, would pass muster even

under the erroneous test that Moore proposes. Whereas in Coolidge the automobile exception

was inapplicable because the suspect “had already had ample opportunity to destroy any

evidence he thought incriminating” in the month-plus period since the crime, see 403 U.S. at

460–61, the Maxima was towed within hours of the murder. See Compl., ¶¶ 10–12.

The automobile exception, accordingly, justifies the warrantless seizure of Defendant’s

vehicle.

2. Independent Source

Even if the automobile exception did not apply — and the initial seizure of the Maxima

thus violated the Fourth Amendment — the intervening search warrant cures any deficiencies

such that the items recovered need not be suppressed.

Generally, fruit of the poisonous tree is subject to the exclusionary rule. See generally

United States v. Hood,

, 6 (D.D.C. 2020) (“When the government conducts an

unconstitutional search or seizure, the Court must exclude any evidence obtained as the ‘fruit’ of

that search or seizure.”) (quoting United States v. Smith,

(D.D.C.

2019)). But “evidence subsequently seized pursuant to a valid search warrant is admissible when

‘there was an independent source for the warrant under which that evidence was seized.’”

United States v. Glover,

(D.C. Cir. 2012) (quoting Segura v. United States,

(1984)).

In Glover, the D.C. Circuit held that officers’ initial warrantless entry into the defendant’s

house, though unlawful, did not bar evidence from a subsequent search conducted pursuant to a

5 warrant obtained in the interim. Id. at 418. Critically, officers had an independent basis for the

warrant — namely, the smell of illegal narcotics detected before officers ever entered the house

— untainted by the illegal activity. Id. Here, evidence was in plain view of the officers —

namely, the aforementioned zip-ties on the passenger seat and front-end damage to the Maxima

— prior to and independent of the car’s being towed to the forensic-sciences lab. In that way,

evidence obtained from the search was no more the fruit of the seizure than in Glover. Towing

the vehicle yielded nothing beyond the mere preservation of evidence. In sum, because the

officers’ observations before the towing constituted an independent source for the warrant, the

Fourth Amendment does not preclude admission of that evidence — even without application of

the automobile exception.

B. Motion to Sever

Moore next moves to sever his trial from that of his three Codefendants. He believes that

Taylor plans to seek an acquittal by pointing out that the evidence against him is weaker than

that against the others. See Moore Mot. to Sever at 2. As a result, he posits, Defendants will be

working at cross purposes and thus should be severed. This Court has previously denied similar

motions by both Taylor and Sweeney, see Feb. 19, 2020, Min. Ord., and Moore’s circumstances

are no more compelling.

Moore does not contest that all four Defendants were properly joined; he contends only

that such joinder is prejudicial to him. See Moore Mot. to Sever; see also Fed. R. Crim. P. 8(b)

(permitting joinder of defendants “alleged to have participated in the same act or transaction, or

in the same series of acts or transactions, constituting an offense or offenses”). Federal Rule of

Criminal Procedure 14(a) authorizes district courts to sever otherwise properly joined defendants

if joinder “appears to prejudice a defendant or the government.” That determination of prejudice

6 — as well as choice of remedy, if appropriate — is left to the sound discretion of the court. See

Zafiro v. United States,

, 538–39 (1993); United States v. Wilson,

(D.C. Cir. 2010). When possible, “less drastic measures, such as limiting instructions,

often will suffice to cure any risk of prejudice.” Zafiro,

. And severance is

particularly disfavored in conspiracy trials given both the efficacy of trying co-conspirators

together and the inequity of inconsistent verdicts.

; United States v. Manner,

(D.C. Cir. 1989) (“In general, we strike a balance in favor of joint trials.”); United

States v. Ford,

(D.C. Cir. 1989) (“The joinder presumption is especially strong

where . . . ‘the respective charges require presentation of much the same evidence, testimony of

the same witnesses, and involve two defendants who are charged, inter alia, with participating in

the same illegal acts.’”) (quoting United States v. Sutton,

(D.C. Cir. 1986)).

Codefendants should be severed “only if there is a serious risk that a joint trial would

compromise a specific trial right of one of the defendants, or prevent the jury from making a

reliable judgment about guilt or innocence.” Wilson,

(quoting Zafiro,

). For example, “when the evidence against one or more defendants is ‘far more

damaging’ than the evidence against another defendant, ‘the prejudicial spillover may have

deprived a defendant of a fair trial.’” Id. at 1018 (cleaned up and citations omitted). Similarly,

codefendants may have mutually antagonistic defenses if “the defense one defendant asserts is

irreconcilable with that asserted by another defendant.” Id. at 1016. But, even then, “[m]utually

antagonistic defenses are not prejudicial per se.” Id. (quoting Zafiro,

). And the

law is “well settled” that severance is not justified simply because defendants “may have a better

chance of acquittal in separate trials.” Zafiro,

; see also Wilson,

(requiring “more than ‘the presence of some hostility’ among codefendants, and ‘more than the

7 fact that co-defendants whose strategies were generally antagonistic were tried together’”)

(quoting United States v. Gilliam,

(D.C. Cir. 1999)).

Here, Moore’s Motion is largely based on Taylor’s February 10, 2021, statements that his

defense will “highlight the quantum and character of scientific evidence that the government will

seek to admit against Mr. Moore and other defendants and contrast that to the lack of scientific

evidence concerning Mr. Taylor.” Moore Mot. to Sever at 2. That evidence includes DNA or

other biological evidence connecting Moore and the other Defendants (but not Taylor) to the

crime.

In contrast, Moore may contend that “he did not participate in the offense” by

similarly pointing to a comparative lack of other types of evidence — namely, surveillance

footage of Codefendants (but not Moore) at a convenience store shortly after the murder as well

as biological evidence of Sweeney and Brown in the Maxima registered to Moore. Id. at 4.

These defenses are not mutually antagonistic. This is not a situation where the jury

would have to disbelieve evidence presented by Moore in order to credit contrary evidence

offered by Taylor or another Codefendant. Instead, just as in many conspiracy trials, the

evidence against certain members may be stronger in certain particulars and weaker in others.

This in no way translates into one Defendant acting as an additional prosecutor, which itself may

not be sufficient to create prejudice. See United States v. Harris, 828 F. App’x. 611, 612–13

(11th Cir. 2020) (“[J]ust having additional defendants sort of serving as a quasi additional

prosecutor is not sufficient.”).

In fact, the Court has already held — as to Taylor and Sweeney’s earlier motions to sever

— that no significant disparity in the evidence exists. See Feb. 19, 2020, Min. Ord.; see also

Motions Hearing Transcript, Feb. 19, 2020, at 14–15 (“[E]ach defendant . . . has an important

role in the conspiracy. And therefore, is not a minimal player.”). Moore’s position is further

8 flawed inasmuch as the Government correctly points out that he “fails to cite to any authority in

which a court has held that prejudice arises, and therefore severance is warranted, in favor of the

defendant against whom the evidence is alleged to be more damaging.” ECF No. 181 (Opp. to

Mot. to Sever) at 3 (emphasis added and deleted). At the end of the day, joint trial prejudices no

Defendant, and the jury remains able to make a reliable judgment of guilt or innocence.

C. Motion in Limine re: Text Messages

Moore next challenges the admissibility of a text conversation between himself and a

now-dead associate named Phillip Dumbuya. See Moore Mot. in Limine. He argues, first, that

the messages are inadmissible as hearsay by a deceased declarant and, second, that they are

prejudicial other-crimes evidence barred by Federal Rule of Evidence 404(b). The Court

examines each contention in turn.

1. Hearsay

The Federal Rules of Evidence generally bar the admission of hearsay, see Fed. R. Evid.

802, defined as an out-of-court statement introduced “to prove the truth of the matter asserted.”

Fed. R. Evid. 801(c). As a preliminary matter, Moore’s outgoing messages are not hearsay. Any

texts he sent may be admitted into evidence as a party admission. See Fed. R. Evid. 801(d)(2).

Although Moore suggests that the text messages stored in his Apple iCloud may not be his own

statements, see Moore Mot. in Limine at 3, he has presented no evidence to that effect. See ECF

No. 179 (Opp. to Moore Mot. in Limine) at 2 n.2. Neither the “transient nature of cellphones”

nor the “lack of any identifying information in the text messages” ipso facto obscures the

sender’s identity. See Moore Mot. in Limine at 3; see also United States v. Lewisbey,

(7th Cir. 2016) (rejecting argument that “the Facebook posts and the text messages

taken from two phones . . . should have been excluded on both hearsay and authentication

9 grounds”); United States v. Farley, No. 15-92,

, at *8 (N.D. Cal. Nov. 9, 2015)

(rejecting argument that “Government will be unable to prove that it was the Defendant who sent

the text messages due to the ‘portable nature’ of cell phones” because “Defendant does not offer

an alternate explanation”). If Moore offers evidence at trial that he did not send the messages,

the Court may reconsider this holding.

The principal issue here, therefore, is whether Dumbuya’s incoming texts should be

excluded. There are a total of thirteen texts over a 24-hour period on May 8-9, 2018. See ECF

No. 179-1 (Moore/Dumbuya Text Exchange). First, at Moore’s request, Dumbuya sent links to

three Instagram accounts of Andre Simmons’s associates. These, too, are not hearsay because

they are not even statements. A statement is an “oral assertion, written assertion, or nonverbal

conduct, if the person intended it as an assertion,” Fed. R. Evid. 801(a), not a question,

command, greeting, or other “nonassertive” communication where any “conveyed messages . . .

were merely incidental and not intentional.” United States v. Long,

(D.C.

Cir. 1990). Photographs are not hearsay. United States v. May,

(9th Cir.

1980) (explaining that a “photograph is not an assertion, oral, written, or non verbal, as required

by Fed. R. Evid. 801(a)”). Much like a photograph, sending a social-media profile is not an

assertion. Although the Instagram profiles may have conveyed information — to wit, the

identities of potential robbery targets associated with Simmons — they were not intended as an

assertion within the meaning of Rule 801(a). To the extent they do constitute assertions — e.g.,

what the associates look like or where they live — they are not being admitted for their truth.

The remainder of Dumbuya’s messages are not hearsay because they are offered for

context rather than for their truth. Statements are non-hearsay if they “go to the defendant’s

intent, motive, or state of mind, help to explain his future conduct, [or] serve to refute any

10 possibility of mistake or misunderstanding.” United States v. Safavian,

, 45–

46 (D.D.C. 2006) (finding that many emails received by defendant “are admissible because they

might help to explain [defendant’s] motive and intent at the time he undertook certain actions”

and explaining that, to avoid hearsay, “the contents of those e-mails and the truth of their

contents . . . cannot be proven through these e-mails, nor may the government rely on them for

that purpose”); see also Lewisbey,

(“The messages [defendant] received were

admitted not for the truth of the matter asserted but instead to provide context for [defendant’s]

own messages.”); United States v. Tolliver,

(7th Cir. 2006) (“Statements

providing context for other admissible statements are not hearsay because they are not offered

for their truth.”). For example, Dumbuya’s 12:24:44 message is offered not to prove that he did

not know when his father would give him the car, as stated in the text message, but to “explain

why Defendant Moore responds and expresses his desire to conduct surveillance in the area in

another vehicle.” Opp. to Moore Mot. in Limine at 5. The remainder of Dumbuya’s messages

are similarly offered to explain Moore’s intent, motive, and state of mind as reflected by his half

of the conversation.

Because the text message string, accordingly, is not hearsay, the Court does not reach the

applicability of Rule 801(d)(2)(E), the co-conspirator-statement exception to the hearsay rule.

2. Other-Crimes Evidence

Moore’s second argument — that the text messages are inadmissible as other-crimes

evidence — is similarly unpersuasive. Federal Rule of Evidence 404(b) bars “[e]vidence of any

other crime, wrong, or act . . . to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.” Such evidence, however, is

admissible “for another purpose, such as proving motive, opportunity, intent, preparation, plan,

11 knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2); see also

United States v. Appiah, No. 19-361,

, at *6 (D.D.C. June 25, 2020) (“[A]ny

purpose for which bad-acts evidence is introduced is a proper purpose so long as the evidence is

not offered solely to prove character.”) (quoting United States v. Miller,

(D.C. Cir. 1990)). Evidence that withstands 404(b) scrutiny must nonetheless also pass muster

under Rule 403’s balancing test, but it fails that test only if the risk of “unfair prejudice”

“substantially outweighs” any probative value. Appiah,

, at *7.

Moore’s 404(b) claim does not get out of the starting gate because the text messages are

not “other crimes” or “other acts” evidence within the meaning of that rule. Merely talking

about intended surveillance or even intended robberies without more is not a crime. Even if the

text conversation were construed as evidence that Moore might engage in other crimes, this

Court has already held that evidence of Defendants’ efforts to target Simmons and his associates

— e.g., two May 2018 home invasions — is relevant as to intent for the charged offenses. See

Feb. 19, 2020, Min. Ord. (granting Government’s 404(b) motion).

In addition, weighing the probative value against the risk of unfair prejudice does not

otherwise bar the text exchange. The risk of unfair prejudice is “minimal” where “other-crimes

evidence add[s] no emotional or other pejorative emphasis not already introduced by the

evidence of the crime charged in this case.” United States v. Straker,

(D.C.

Cir. 2015) (citation and internal quotation marks omitted). Here, text messages reflecting

conspirators’ surveillance efforts are not emotionally charged, particularly as compared to the

ultimate abduction and murder. By contrast, the probative value is relatively high. Plans to

locate and surveil Simmons’s associates implicate the requisite intent for the charged offenses —

12 viz., that Defendants knowingly and willfully kidnapped Simmons. This Motion will thus be

denied.

D. Motion to Strike re: Other-Crimes Evidence

Moore also moves to strike portions of the Government’s June 17, 2020, Notice of

Supplemental Evidence of Conspiracy. See Moore Mot. to Strike. In other words, he asks the

Court to preclude the admission of such evidence. This evidence includes: 1) a

,

armed home invasion; 2) text messages concerning unrelated robberies; and 3) communications

regarding a firearm. As above, Moore challenges this evidence as prejudicial other-crimes

evidence barred by Federal Rule of Evidence 404(b). While the Court agrees that Rule 404(b)

precludes evidence of the home invasion, the text messages and photograph are fair game.

1. May 23 Home Invasion

On

, Moore, Brown, and Taylor allegedly invaded a home in College Park,

Maryland, that was unconnected to Simmons. See ECF No. 145 (Supp. Evid. of Consp.) at 1–4.

In the surrounding days (May 21 and 29), there were two other home invasions targeting

Simmons and his associates that this Court previously ruled were “intrinsic to the conspiracy”

and thus admissible. See Feb. 19, 2020, Min. Ord.; see also Suppl. Evid. of Consp. at 1. Relying

on that decision, the Government argues that evidence of this third incident is likewise

admissible to show the formation of the conspiracy and relationships among co-conspirators.

See ECF No. 154 (Opp. to Mot. to Strike) at 2–6. The Court disagrees.

As explained above, Rule 404(b) prohibits other-crimes evidence from being used to

prove a defendant’s propensity to commit the charged crime. But if the evidence is “intrinsic” to

the charged offense — i.e., “where the incident offered is a part of the conspiracy alleged[—] the

evidence is admissible under Rule 404(b) because it is not an ‘other’ crime.” United States v.

13 Machado-Erazo,

(D.C. Cir. 2018) (quoting United States v. Hemphill,

(D.C. Cir. 2008)); but see United States v. Bowie,

, 927–29 (D.C.

Cir. 2000) (questioning intrinsic-evidence doctrine). In the context of a conspiracy prosecution,

the Government thus has “considerable leeway” to “offer[] evidence of other offenses ‘to inform

the jury of the background of the conspiracy charged, to complete the story of the crimes

charged, and to help explain to the jury how the illegal relationship between the participants in

the crime developed.’” United States v. Mathis,

(D.C. Cir. 2000) (quoting

United States v. Williams,

, 33–34 (2d Cir. 2000)); see also Machado-Erazo,

(tracing conspiracy cases in which D.C. Circuit permitted introduction of “other

acts” evidence to “link a defendant to other defendants[,] . . . to show the nature of a conspiracy

and the kind of organizational control a defendant exercised, and to show the defendants’ intent

to act in concert”) (citing cases) (internal quotation marks and citations omitted).

That leeway is not without limits. The D.C. Circuit has “no general ‘complete the story’

or ‘explain the circumstances’ exception to Rule 404(b).” Bowie,

. Nor has it

allowed “evidence that establishes associations or prior relationships” simply “because it may be

relevant to show the defendant’s knowing participation in a later conspiracy and thus is

inextricably intertwined with the facts on trial.” United States v. Sitzmann,

(D.D.C. 2012). In Sitzmann, for example, evidence of the defendant’s prior escape from

prison with the assistance of future co-conspirators as well as other evidence relevant to establish

a cooperative relationship among them was not intrinsic to the instant drug-trafficking

conspiracy.

, 60–61. The strictures of 404(b) still applied.

Here, evidence of the third home invasion is not intrinsic to the conspiracy. In its

February 19 decision, the Court allowed evidence of the two other home invasions in large part

14 because they demonstrated a pattern of attempts to search for Simmons. See Feb. 19, 2020, Min.

Ord. In contrast, the College Park incident is unrelated to Simmons and his associates and was

motivated instead by efforts to procure money and narcotics. See Supp. Evid. of Consp. at 3.

The only plausible justification would be to demonstrate a relationship among our Defendants.

As in Sitzmann, however, merely offering evidence to establish associations or prior

relationships, without more, is not enough to render that evidence intrinsic. The Government,

moreover, has a wealth of other evidence regarding Defendants’ relationships with each other.

Nor is it offered for a permitted purpose under 404(b). The Court asks whether “the

evidence [is] probative of some material issue other than character” or propensity. United States

v. Loza,

(D.D.C. 2011) (alteration in original) (quoting United States v.

Clarke,

(D.C. Cir. 1994)). The Government fails to provide such a purpose.

The home invasion is a materially different crime from the kidnapping and murder ultimately at

issue in this case and, accordingly, largely irrelevant to prove “motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid.

404(b); see also United States v. Williams, No. 20-121,

, at *5 (D.D.C. Dec.

10, 2020) (“A primary requirement when seeking to establish knowledge or intent with prior bad

acts is that the evidence must meet a threshold level of similarity to be admissible.”). Instead,

such “evidence of other, unrelated bad acts suggest[s] nothing more than a tendency or

propensity to engage in criminality.” United States v. McGill,

(D.C. Cir.

2016).

Evidence of the College Park home invasion, as a result, is inadmissible under Rule

404(b). The Court, however, may reconsider this ruling if Defendants open the door by making

arguments or introducing evidence that would be refuted by this incident.

15 2. Text Messages

Applying similar logic, Moore next challenges the admission of text messages between

himself and Brown, labeled in the Government’s Notice as (i) “Evidence of admissions regarding

mistaken/botched robberies” and (ii) “Evidence of intent to commit future robberies.” Supp.

Evid. of Consp. at 10–16. Here he is unsuccessful. These messages are not in and of themselves

bad acts subject to Rule 404(b), nor are they “other crimes” evidence. In any event, they are

intrinsic to the conspiracy inasmuch as they demonstrate how Moore and Brown communicated

and their intent to act in concert within the relevant timeframe. See Appiah,

,

at *8. Unlike the May 23 home invasion, these are repeated points of contact intertwined with

the nature of the conspiracy. Rule 403, too, does not bar their admission. While there are

references to, in the words of Defendant, “a smorgasboard of alleged criminal conduct” with the

“clear implication” that “Moore is a criminal actor who seeks to rob people,” Moore Mot. to

Strike at 5, such prejudice is outweighed by the substantial probative value. Because the

Government does not have access to Defendants’ phone calls prior to or during the June 19

abduction, these text messages are critical to demonstrate the nature of the conspiracy. See Opp.

to Mot. to Strike at 8. The text messages are thus admissible.

3. Communication Regarding Firearm

On June 1, 2018, several weeks before the charged kidnapping and homicide, Moore sent

Brown a photograph of a firearm, see ECF No. 145-2 (Moore/Brown Text Exchange) at 34, the

admissibility of which he now attacks on 404(b) grounds. According to Moore, such evidence

serves only to show his propensity to possess guns. See Moore Mot. to Strike at 6. The Court

believes otherwise.

16 At the outset, it is clear that this evidence is not intrinsic to the conspiracy because the

firearm is unrelated to the abduction, murder, and home invasions deemed admissible.

Assuming the photograph is evidence of a crime — e.g., illegal possession of a firearm — it is

thus subject to 404(b). D.C. Circuit law is well established that “[k]nowledge of firearms is a

permissible purpose under Rule 404(b),” United States v. Bell,

(D.C. Cir. 2015);

Williams,

, at *4 (citing cases), so long as evidence of that knowledge is not

stale. United States v. Harris, No. 19-358,

, at *3 (D.D.C. Nov. 4, 2020)

(citing United States v. Oral George Thompson,

(D.C. Cir. 2019)). That

knowledge, as well as intent and lack of accident, is relevant for the foreseeability of

codefendants’ use of firearms during an armed offense. See United States v. Fullilove,

, 533–34 (7th Cir. 2012) (discussing foreseeability that co-conspirator would use

firearm); see also United States v. Lerma-Plata,

(D.D.C. 2013)

(“[E]vidence regarding alleged acts and statements by Defendant about the negotiation,

purchase, and sale of firearms, would clearly constitute direct evidence of the manner and means

used by The Company to carry out the conspiracy during the time period stated in the

indictment.”).

Here, firearms evidence is offered for just such a permitted purpose. There is some

question whether Brown knew that members of the conspiracy would be armed. See Opp. to

Mot. to Strike at 7–8. The communication between him and Moore provides evidence of that

knowledge, that Moore had access to firearms, and that not just knives would be brought to the

gunfight. Turning to the second stage of the analysis, evidence of the firearm is not barred by

Rule 403. Such evidence is highly probative of Moore and Brown’s joint access to firearms and

knowledge that conspirators would be armed. The evidence was not stale; indeed, the

17 communication occurred in the middle of a monthlong conspiracy bookended by home invasions

and the ultimate charges. On the other hand, the risk of unfair prejudice is low. The photograph

is hardly inflammatory or emotionally charged, and, given the extent of other firearms evidence

in this case, unlikely to sway the jury on any improper basis.

E. Government Motion in Limine re: Taylor Phone Expert

Believing that a defense expert’s disclosure is insufficient, the Government moves the

Court to either require a fuller report or preclude him from testifying. See Fed. R. Crim. P.

16(b)(1)(C) (requiring defense expert to provide written summary of expert testimony intended

for use, including witness’s “opinions, the bases and reasons for those opinions, and the

witness’s qualifications”). Taylor has notified the Government that Spencer McInvaille is an

expert “on the subjects of telecommunications and cell phone forensics, including the analysis of

cellular telephone records and cellular location.” Gov’t Mot. in Limine, Exh. A (March 13,

2020, Letter). He will conclude that “the government’s attribution to Mr. Taylor of ownership or

possession of the [phone] during the criminal activity . . . is unsupported by the available data, as

is the government’s equation of that phone’s location and usage, during that criminal activity, to

Mr. Taylor.”

The Government believes that if McInvaille is going to testify that the cell records

demonstrate that the phone was somewhere other than where the Government experts have

opined, he must offer data and proof. See Gov’t Mot. in Limine at 4. It appears, however, that

McInvaille’s testimony will be far more cabined than the Government infers. He will not testify

that the phone was in a certain other location; instead, he will attempt only to cast doubt on the

Government experts’ methodology and analysis. See ECF No. 165 (Taylor Opp. to Gov’t Mot.

in Limine) at 3. The Court, accordingly, will deny the Government’s Motion as it appears moot.

18 Taylor, conversely, will not be able to sandbag the Government at trial by offering McInvaille’s

opinion that the phone was located somewhere other than where the Government’s experts

testify.

III. Conclusion

For the foregoing reasons, the Court will deny the Government’s Motion as well as

Moore’s Motions to Suppress, to Sever, and in Limine. As for Moore’s Motion to Strike, the

Court will grant the Motion as to the May 23 home invasion, deny it as to the text messages, and

deny it as to the communication regarding a firearm. A separate Order so stating will issue this

day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date:

, 2021

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