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United States v. Moore

United States Court of Appeals, Seventh Circuit

May 27, 2016

United States of America, Plaintiff-Appellant,
Maurice Dimitrie Moore, Defendant-Appellee.

          Argued January 6, 2016

         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.

          Before Posner and Williams, Circuit Judges, and Pallmeyer, District Judge. [1]

          Pallmeyer, District Judge.

         Marcus Hayden, a federal probationer, 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 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 officer. 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, however, that the records are admissible under the residual hearsay exception, Fed.R.Evid. 807, and therefore vacate the district court's order.


         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 injured. Using the serial number of the gun they recovered from Hayden, officers quickly identified the firearm as registered to Defendant Maurice Moore. Moore had reported the gun, a Glock, stolen from his car on March 2, 2012. In an interview with agents from the Bureau of Alcohol, Tobacco, Firearms, and Explosives on April 10, 2012, Moore acknowledged 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 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 approximately 8:00 p.m. to provide the number. Before, during, and after these events on March 2, Moore's phone placed and received 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 admitted 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 probation 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- 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.


         On appeal, the government argues that Hayden's telephone 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 government's Rule 807 argument, as it proves dispositive. See United States v. Dumeisi, 424 F.3d 566, 577 (7th Cir. 2005).

         We review the district court's decision to exclude evidence for an abuse of discretion, but we review its interpretation of the rules de novo. United States v. Rogers, 587 F.3d 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 reverse "only where the trial court committed a clear and prejudicial error." Id. at 758 (internal quotation marks omitted).

         A proponent of hearsay evidence must establish five elements in order to satisfy Rule 807: "(1) circumstantial guarantees 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 objected that he was given insufficient notice or that Hayden's statements are not highly probative. The district court's determination that the Reports would not serve the interests of justice relied exclusively on its conclusion that the statements contained therein were not trustworthy.

         For the purposes of assessing the trustworthiness of a hearsay statement under Rule 807, this court, in Snyder, ...

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