18‐2414‐cr United States v. Jalisa Moore

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st day of November, two thousand nineteen.

PRESENT: JON O. NEWMAN, DENNY CHIN, JOSEPH F. BIANCO, Circuit Judges.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 18‐2414‐cr

JALISA MOORE, Defendant‐Appellant.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR APPELLEE: DREW G. ROLLE, Assistant United States Attorney (Jo Ann M. Navickas, Assistant United States Attorney, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, New York.

FOR DEFENDANT‐APPELLANT: EDWARD S. ZAS, Federal Defenders of New York, Inc., Appeals Bureau, New York, New York.

Appeal from the United States District Court for the Eastern District of

New York (Vitaliano, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant Jalisa Moore appeals from the August 15, 2018,

judgment of the district court convicting her, following a jury trial, of importing cocaine

into the United States in violation of

(a) and 960(b)(3) and possession of

cocaine with intent to distribute in violation of

(a)(1) and (b)(1)(C). The

district court sentenced Moore principally to 24 monthsʹ imprisonment. Moore argues

that the district court committed reversible error by keeping from the jury admissible

evidence that would have supported her contention that, because of her low intelligence

and serious cognitive impairments, she did not know, and did not consciously avoid

knowing, that she possessed a controlled substance. We assume the partiesʹ familiarity

with the underlying facts, procedural history, and issues on appeal.

Moore was arrested at John F. Kennedy Airport (ʺJFKʺ) on October 8, 2016,

upon her arrival from Georgetown, Guyana. During an enforcement examination,

-2- Customs and Border Protection (ʺCBPʺ) agents discovered approximately 1.5 kilograms

of cocaine hidden inside the bottom lining of her suitcase. In a post‐arrest statement,

Moore first said that a ʺfriendʺ had given her the suitcase containing the drugs, but later

stated that it had in fact come from her cousin, Jaclyn Caines. Appʹx at 98. Though

Moore admitted she was aware that Caines sold drugs in Guyana, she denied knowing

that the carry‐on bag contained drugs. When asked about Cainesʹ last trip to the United

States, Moore appeared confused, initially saying that Caines had last traveled to the

United States in November 2016 even though the interrogation was taking place in

October 2016.

At trial, Moore sought to establish that she suffers from borderline

intellectual functioning and therefore did not know that her suitcase contained drugs.

The government indicated that it would offer portions of Mooreʹs statement admitting

that she knew Caines was a drug dealer as an opposing party statement. Moore, in

turn, moved in limine to introduce the following: (1) the entirety of her post‐arrest

statement under Federal Rule of Evidence 106 to explain the portions of the interview

the government sought to introduce; (2) portions of her post‐arrest statement as

relevant to voluntariness under

; and (3) the testimony of two lay

witnesses as to her diminished adaptive functioning as a result of her cognitive deficits.

The district court denied each request. Specifically, the court declined to admit the

entire post‐arrest statement on the grounds that it was not required to be introduced to

-3- comply with the rule of completeness. The district court did allow portions of the

statement proposed by Moore, but excluded certain proposed excerpts and the lay

witness testimony under Federal Rule of Evidence 403, finding that their probative

value was outweighed by the risk of jury confusion and unfair prejudice to the

government. The district court permitted Mooreʹs expert to testify as to her intellectual

impairment, but prohibited the expert from testifying as to Mooreʹs mental capacity to

form criminal intent or her mental state at the time of her arrest and interrogation.

We review a district court’s evidentiary rulings for abuse of discretion and

will ʺdisturb an evidentiary ruling only where the decision to admit or exclude evidence

was manifestly erroneous.ʺ United States v. Williams,

(2d Cir. 2019)

(internal quotation marks omitted).

I. Post‐Arrest Statements

Moore argues that the district court abused its discretion when it excluded

certain excerpts from her post‐arrest statement, namely her denials of knowledge of the

drugs and her conversation regarding the timing of Cainesʹ prior trip to New York. We

disagree.

ʺIf a party introduces all or part of a . . . statement, an adverse party may

require the introduction, at the same time, of any other part . . . that in fairness ought to

be considered at the same time.ʺ Fed. R. Evid. 106. The rule is intended to ʺprevent

omissions that render matters in evidence misleading.ʺ Williams,

.

-4- (internal quotation marks omitted). Moreover, Federal Rule of Evidence 403 provides

that ʺ[t]he court may exclude relevant evidence if its probative value is substantially

outweighed by . . . unfair prejudice, confusing the issues, [or] misleading the jury . . . .ʺ

We will reverse a district court’s conscientiously balanced Rule 403 decision ʺonly if it is

arbitrary or irrational.ʺ United States v. Massino,

(2d Cir. 2008) (internal

quotation marks omitted).

Further,

(a) provides that the trial court, upon determining

that a confession was made voluntarily, ʺshall permit the jury to hear relevant evidence

on the issue of voluntariness and shall instruct the jury to give such weight to the

confession as the jury feels it deserves under the circumstances.ʺ See United States v.

McLaughlin, 253 F. Appʹx 110, 112 n.1 (2d Cir. 2007) (portion of § 3501(a) concerning jury

consideration of confession presumed to be valid). Evidence surrounding the making

of a confession bears on its voluntariness and may be germane to its probative weight.

See Crane v. Kentucky,

, 688‐89 (1986).

A. Completeness

Rule 106 did not require admission of Mooreʹs disavowals of knowledge,

which were otherwise inadmissible hearsay under Rule 802, because they were not

necessary to explain Mooreʹs statements that she received the suitcase from a cousin

whom she knew to be a drug dealer. See United States v. Johnson,

(2d

Cir. 2007) (holding that the district courtʹs decision to omit statements that were neither

-5- explanatory of nor relevant to admitted statements was not error). Moreover, the two

excluded passages that Moore contends were necessary for completeness were neither

clear nor particularly probative, and Moore successfully introduced large portions of

the interrogation. Accordingly, the district court did not abuse its discretion in

precluding Mooreʹs denial of knowledge.

B. Voluntariness

Likewise, Rule 403 did not require the admission of Mooreʹs statements

regarding when Caines last visited the United States. The district court observed that

any inference that a failure of comprehension at one point during the interview

inherently afflicted statements made at other points in the interview rested on ʺthe

sheerest of speculationʺ and so had minimal probative value as to the question of

voluntariness. Appʹx at 81. Moreover, the district court found that the statement would

be highly prejudicial, as the government would have no opportunity to question Moore

as to her comprehension when she waived her Miranda rights and made the statements.

The district courtʹs application of the Rule 403 balancing test was thus neither arbitrary

nor irrational. Accordingly, we find no abuse of discretion in the district courtʹs

decision to exclude the excerpted statements.

II. Lay Witness Testimony

Moore contends that the district court abused its discretion by excluding

the testimony of two lay witnesses who would have provided evidence related to

-6- Mooreʹs adaptive deficits ‐‐ specifically, Mooreʹs struggles at school and work. We

disagree.

Though Moore retained an expert to evaluate whether she experienced

intellectual impairment, she did not make the proposed lay witnesses available to this

expert. Accordingly, even though Moore conceded that the lay witness testimony was

relevant only insofar as it could have supported an expert witnessʹs diagnosis of Moore

as intellectually disabled, she nevertheless proposed that the jury be permitted to

determine whether the lay testimony supported a potential diagnosis. The district court

found that evaluating such evidence was within the purview of experts and ʺbeyond

the ken of the average person.ʺ Appʹx at 136. Untethered from expert testimony, the

court found that the probative value of the lay testimony was outweighed by the

possibility of juror confusion. The district courtʹs application of Rule 403 was thus

neither arbitrary nor irrational and, accordingly, we conclude that the district court did

not abuse its discretion by excluding the lay witness testimony.

III. Harmless Error

Even assuming the district court erred in failing to admit Mooreʹs post‐

arrest denials of knowledge, the post‐arrest exchange regarding the calendar, and the

lay‐witness testimony, the errors were harmless. ʺUnder harmless error review, we ask

whether we can ʹconclude with fair assuranceʹ that the errors ʹdid not substantially

influence the jury.ʹʺ United States v. Oluwanisola,

, 133‐34 (2d Cir. 2010)

-7- (citation omitted). We consider the following factors when assessing the importance of

improperly excluded evidence:

(1) the importance of unrebutted assertions to the governmentʹs case; (2) whether the excluded material was cumulative; (3) the presence or absence of evidence corroborating or contradicting the governmentʹs case on the factual questions at issue; (4) the extent to which the defendant was otherwise permitted to advance the defense; and (5) the overall strength of the prosecutionʹs case.

ʺWe have repeatedly held that the strength of the governmentʹs case is the most

critical factor in assessing whether error was harmless.ʺ United States v. McCallum,

(2d Cir. 2009).

Here, the governmentʹs case was quite strong. Moore bought a plane

ticket with cash, and then carried aboard a bag containing some $50,000 worth of

cocaine given to her by her cousin whom she knew to be a drug dealer. Moore behaved

suspiciously during secondary inspection at JFK, and the agent searching her carry‐on

bag observed that the bag was heavier and the bottom of the bag thicker than one

would expect. Further inspection of the carry‐on revealed approximately 3.33 pounds

of cocaine concealed under its bottom lining. During interrogation, Moore gave

conflicting answers about who had given her the carry‐on bag. All of this evidence

showed, at a minimum, consciousness of guilt. Finally, though Mooreʹs explicit denial

of knowledge was excluded, she was able to argue to the jury that she never admitted

-8- knowledge of the cocaine. Moreover, Moore was able to present her defense of

cognitive impairments through her expert witness.

* * *

We have considered Mooreʹs remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

-9-