PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 11-5095

TYRONE MOORE,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

J. Frederick Motz, Senior District Judge.

(1:09-cr-00297-JFM-1)

Argued: December 7, 2012

Decided: March 1, 2013

Before TRAXLER, Chief Judge, and GREGORY and

DAVIS, Circuit Judges.

Vacated and remanded by published opinion. Chief Judge

Traxler wrote the opinion, in which Judge Gregory and Judge

Davis joined.

COUNSEL

ARGUED: James Michael Nichols, WARNKEN, LLC, Towson, Maryland, for Appellant. Jefferson McClure Gray,

OFFICE OF THE UNITED STATES ATTORNEY, Balti-
more, Maryland, for Appellee. ON BRIEF: Byron L.

Warnken, WARNKEN, LLC, Towson, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Christopher

J. Romano, Assistant United States Attorney, OFFICE OF

THE UNITED STATES ATTORNEY, Baltimore, Maryland,

for Appellee.

OPINION

TRAXLER, Chief Judge:

A jury convicted Tyrone Moore of carjacking, using a firearm in furtherance of carjacking, and conspiracy. After the

trial, Moore filed a motion for a new trial based, in part, on

newly discovered evidence, but the district court denied it.

Because the district court erred in denying Moore’s motion

for a new trial, we vacate and remand for a new trial consistent with this opinion. 

I.

A.

In the early evening of November 25, 2007, Donald Roarty

parked his Jeep Grand Cherokee on East 39th Street in Baltimore, Maryland to attend a meeting at a nearby church. When

he exited his vehicle and began walking toward the church, he

heard a voice behind him asking where he could find a

"whatchamacallit." When Roarty turned around, a man who

was standing approximately five feet away pulled out a handgun and demanded the keys to Roarty’s Jeep. Roarty complied by tossing the keys to the assailant, who subsequently

drove off in the Jeep. Roarty then called the police to report

the crime. The encounter lasted only twenty to thirty seconds.

Because the assailant was wearing a hat and had a dark bandana over his face, Roarty could only see his eyes and

dreadlocks showing below the hat. 

2 UNITED STATES v. MOORE
Three days later, on November 28, 2007, Detective Brandon Underhill of the Harford County Sheriff’s Office, who

was working in an undercover capacity at the time, met with

Larry Pollin to conduct an undercover drug buy. Pollin

arrived at the meeting place in a Jeep Grand Cherokee with

three other people, and he and Detective Underhill exchanged

money for crack cocaine. Detective Underhill could not determine who drove the vehicle to the drug buy, but he testified

that Pollin drove the vehicle away. A surveillance unit of the

sheriff’s office working alongside Detective Underhill ran the

plates and determined that the Jeep was registered to Donald

Roarty. At the time, however, the sheriff’s office was unaware

that Roarty had reported the Jeep stolen. Therefore, after following the Jeep for 45 minutes to conduct surveillance after

the drug sale, the sheriff’s office terminated the encounter.

The detectives involved in the drug buy were unable to identify the other three individuals in the vehicle.1

Four days later, on December 2, 2007, Deputy Jeffrey Gerres of the Harford County Sheriff’s Office was patrolling an

apartment complex known for drug and gang activity. Gerres

noticed several men standing in a breezeway below a sign that

proscribed loitering and recognized one of the men as Lamere

Walton, a known gang member. Deputy Gerres parked outside of the development and approached the men on foot to

investigate. As Deputy Gerres approached, some of the men

ran into nearby apartments. However, Deputy Gerres was able

to stop and detain Walton, who immediately began reaching

in his pockets. Fearing that Walton was attempting to get a

weapon or seeking to destroy evidence, Deputy Gerres pulled

Walton’s hand out of his pocket. In Walton’s hand was a car

key. 

1Pollin was subsequently arrested, taken into custody, and indicted for

his participation in a gang-related shooting. It is unclear from the record

whether Pollin or the other three individuals were ever indicted for their

role in selling crack cocaine. 

UNITED STATES v. MOORE 3
Deputy Gerres pressed the key’s panic button, which activated the lights and horn of a Jeep parked nearby. After running the plates on the vehicle, Deputy Gerres learned that the

vehicle had been recently stolen in an armed carjacking. The

vehicle turned out to be Roarty’s stolen Jeep, and Walton was

placed under arrest. Deputy Gerres then searched the vehicle

with the aid of other officers and found a black and orange

Baltimore Orioles baseball cap. During this encounter, Tyrone

Moore, whom Deputy Gerres knew to be a gang member and

an associate of Walton’s, walked by the scene wearing a black

Orioles t-shirt, black and orange pants, and black and orange

shoes. Because Moore and Walton were friends and because

Moore’s outfit matched the baseball cap within the vehicle,

Deputy Gerres detained Moore for a brief investigation.

Moore denied involvement in the carjacking, and Deputy Gerres took photographs of Moore to show his clothing and then

released him. 

Subsequently, the Baltimore City Police Department began

efforts to create a photo line-up for use in the Roarty case.

The police department contacted Corporal Richard E. Carroll,

III, of the Maryland State Police Department, and requested

a photograph of Moore to use in the photo array. Corporal

Carroll indicated that not only did he have a photo of Moore,

but he also possessed a photo array, already prepared for an

unrelated investigation in October 2007, that included

Moore’s photograph. Corporal Carroll provided that photo

array to the city police officers who decided to use it in their

investigation. 

Roarty was then contacted by the city police department

and asked to come to the station to view the photo array. The

police department told Roarty that they had recovered his

Jeep and that they had a suspect in custody. Although the

police department did not tell Roarty that the suspect was in

the photo array, Roarty testified that he assumed the suspect

would be in it based on the fact that a suspect was in custody

at the time. When looking at the photos, Roarty initially indi4 UNITED STATES v. MOORE
cated that he was not sure he would be able to make an identification in light of the fact that so much of the assailant’s face

had been covered up at the time of the carjacking. One of the

officers administering the photo array instructed Roarty to

focus on the portion of the face that Roarty could see at the

time of the carjacking—the eyes. Based on the eyes and general shape of the face in a particular photograph, Roarty

picked Moore out of the photo array, indicating at the time

that he was 95% certain that the person he selected was the

carjacker. 

B.

Moore was indicted for conspiracy to steal a car with intent

to cause serious bodily harm, see 18 U.S.C. § 371 ("Count

1"); theft of a car with intent to cause serious bodily harm, see

18 U.S.C. § 2119 ("Count 2"); and use of a firearm in furtherance of carjacking, see 18 U.S.C. § 924(c) ("Count 3"). Prior

to trial, Moore requested that the government provide photographs of Pollin taken at or near the time the carjacking

occurred. The government complied by providing Moore with

several pictures of Pollin, including one depicting Pollin with

dreadlocks ("Dreadlocks Picture") and one depicting Pollin

with short hair ("Short Hair Picture"). The government

explained to Moore’s attorney that some of the pictures came

from a police incident report relating to Pollin’s arrest for a

shooting that occurred approximately one month after the carjacking. The Short Hair Picture was dated December 31,

2007. Notably, the Dreadlocks Picture was undated. 

The focus of the trial that followed was the identity of the

carjacker. Seeking to persuade the jury that Moore was the

carjacker, the government made efforts to eliminate the possibility that someone other than Moore committed the crime.

Because Pollin was the first person seen driving the stolen

Jeep, only three days after the carjacking, part of the government’s case was excluding Pollin as the possible assailant. 

UNITED STATES v. MOORE 5
The government sought to achieve this end in large part by

offering proof that Pollin did not have dreadlocks at the time

of the carjacking. To establish this fact, the government produced the testimony of the officer who saw and dealt with

Pollin shortly after the Roarty incident and corroborated his

testimony with a photograph taken of Pollin a month later.

Specifically, Detective Underhill testified that he saw Pollin

on November 28, 2007, three days after Roarty was robbed

and that Pollin had short hair at that time. Detective Underhill

then viewed the Short Hair Picture of Pollin, represented by

the government to have been taken by law enforcement on

December 31, 2007, and confirmed that Pollin’s short hair in

that photograph was similar to his short hair length that

Detective Underhill saw on November 28. Detective

Underhill further testified that he could not recall Pollin ever

having dreadlocks. When counsel for Moore asked Detective

Underhill about the Dreadlocks Picture on cross-examination,

Detective Underhill explained that "[t]he hair [was] different

from what [he] kn[e]w." J.A. 341. 

As previously stated, the government also provided Moore

with a picture of Pollin with dreadlocks, but it was undated.

In attempting to prove that Pollin had dreadlocks at the time

of Roarty’s carjacking, Moore’s counsel asked defense witness Michael Wells about the Dreadlocks Picture. Wells was

a friend of Moore’s and a cousin of Pollin’s, and was incarcerated at the time of Moore’s trial for drug and firearm

offenses. So although Wells did testify that Pollin had

dreadlocks at the time of the carjacking, his testimony was

weak in the face of the government’s dated photograph and

corroborating testimony from Detective Underhill. Ultimately, the jury believed that Moore was the assailant and

that Pollin was not, and it convicted Moore of each count in

the indictment.2

2To be certain, establishing that Pollin was or was not the carjacker was

not the only issue at trial. However, as is evident by the fact that both the

government and Moore raised the issue of Pollin’s hair length in their

closing arguments, it was a central issue at the trial. 

6 UNITED STATES v. MOORE
C.

After trial, Moore continued to insist to his attorney that the

Short Hair Picture, despite the fact that it was dated December

31, 2007, was not consistent with his recollection of Pollin’s

appearance at that time. Counsel for Moore contacted counsel

for the government and asked him to confirm the date of the

Short Hair Picture. The government continued to represent

that the picture was taken on December 31, 2007, and it belittled the defendant for continuing to raise a question about the

date the photo was taken. Specifically, the government

responded to Moore’s counsel with the following: "To the

extent that your client claims to have seen [Pollin] . . . in

December with dre[a]ds, he is either mistaken or lying. Care

to guess which it is?" J.A. 785. As it turns out, the government was the one mistaken. Pollin did indeed have dreadlocks

in November and December 2007, and the date on the Short

Hair Picture was wrong. 

Moore’s attorney ultimately proved this by raising the issue

with Pollin’s former attorney, who happened to have in his

file Pollin’s real booking photograph taken on December 31,

2007, that depicted Pollin with dreadlocks. This photo

matched the undated Dreadlocks Picture. The government has

now admitted that the Short Hair Picture it received from Harford County, produced to Moore, used and relied upon at trial,

and represented to have been taken on December 31, 2007,

was, unbeknownst to it at the time of trial, not taken until

early 2009 when Pollin first cut off his dreadlocks.

This discrepancy resulted from a system utilized by Harford County up until Spring 2009, in which booking photographs were replaced automatically by new photographs

whenever an inmate changed his or her appearance dramatically. According to Corporal Christopher Crespo, a booking

supervisor with the Harford County Sheriff’s Office, under

this system, an inmate’s original booking photograph would

always be retained in a hard-copy file but the electronic copy

UNITED STATES v. MOORE 7
of the original booking photograph would be replaced by any

new photographs that were taken to depict an inmate’s thencurrent appearance. And as is evident from the facts of this

case, the new electronic photograph would apparently retain

the date of the inmate’s initial booking, as if the new picture

were taken when the inmate was initially processed and

brought into the detention facility.3 Corporal Crespo further

stated that the Short Hair Picture was taken in January 2009

and that his review of the complete record of photographs

revealed that Pollin had dreadlocks until January 2009. 

There is no doubt that Harford County could have done

more to ensure that it provided the United States Attorney’s

Office with an accurate booking photograph of Pollin. However, there is no evidence to suggest that the Assistant United

States Attorney prosecuting this case produced and used the

Short Hair Picture with anything but an honest belief in its

accuracy. That being said, Moore suffered the consequences

of having a jury believe that Pollin, the first person seen in the

Jeep three days after the carjacking, looked nothing like the

assailant described by Roarty at the time of the carjacking. 

For this reason, Moore filed a motion for a new trial with

the district court. In his motion, Moore argued that the discovery of the actual dates of the Short Hair Picture and the

Dreadlocks Picture constituted newly discovered evidence

and, alternatively, that the government’s failure to disclose

this fact violated Brady v. Maryland, 373 U.S. 83 (1963). The

district court denied the motion, and Moore appeals from that

ruling. Because we find that the district court erred in rejecting Moore’s newly-discovered-evidence argument, we conclude that Moore is entitled to a new trial. 

3Because Harford County, and subsequently the government at trial,

produced the Short Hair Picture, we assume that the Short Hair Picture

came from Harford County’s electronic file. 

8 UNITED STATES v. MOORE
II.

To be entitled to a new trial under Federal Rule of Criminal

Procedure 33 based on newly discovered evidence, a defendant must satisfy a five-part test by showing that (1) the evidence is newly discovered; (2) the defendant exercised due

diligence; (3) the newly discovered evidence is not merely

cumulative or impeaching; (4) the evidence is material; and

(5) the evidence would probably result in acquittal at a new

trial. See United States v. Chavis, 880 F.2d 788, 793 (4th Cir.

1989) ("Chavis Test"). We review the denial of a motion for

a new trial for an abuse of discretion. United States v. Perry,

335 F.3d 316, 320 (4th Cir. 2003). 

The district court concluded that Moore satisfied the first

three prongs of the Chavis Test because the actual booking

photograph of Pollin taken on December 31, 2007, depicting

him with dreadlocks was newly discovered evidence; Moore

exercised due diligence in discovering the evidence; and the

new evidence was not merely cumulative or impeaching.

However, the district court concluded that Moore could not

satisfy the materiality prong of the Chavis Test because he put

on a defense at trial that the court found to be disingenuous.

Specifically, the court concluded that 

Moore chose to put on a defense that he could not

have committed the carjacking because he was present at a violent incident that occurred at another

location when the carjacking occurred. Although a

photograph suggesting that Pollin, not Moore, might

have committed the carjacking was tangentially relevant to the defense, the fact of the matter is that the

defense was entirely unconvincing, as was Moore’s

contention, based upon false testimony that he produced, that it was a junkie who committed the carjacking. . . . Because he chose to present a defense

based on perjured testimony, I will not permit him to

have another opportunity to obtain an acquittal

UNITED STATES v. MOORE 9
because of the innocent error that was made by the

production of an erroneous photograph to him. 

J.A. 798-99. And with regard to the fifth prong of the Chavis

Test concerning the probability of success on retrial, the district court stated that it did not need to reach that issue given

its conclusion that the evidence was not material. Nonetheless, the court also stated that "[i]f Moore had not made the

decision to present this fabricated defense, I would grant him

the new trial he requests." J.A. 799.

On appeal, Moore contends that the district court correctly

resolved the first three Chavis factors in his favor, that the district court abused its discretion in evaluating the materiality

prong, and that he can satisfy the fifth Chavis factor by showing that it is likely that he would be acquitted at a new trial.

The government, however, contends that Moore cannot satisfy any of the Chavis factors. See United States v. McHan,

386 F.3d 620, 623 (4th Cir. 2004) (observing that we are "entitled to affirm on any ground appearing in the record, including theories not relied upon or rejected by the district court"

(internal quotation marks omitted)). 

In our view, the district court did not abuse its discretion in

resolving the first prong of the Chavis Test in favor of Moore.

"[N]ewly discovered evidence means evidence discovered

since the trial," United States v. Fulcher, 250 F.3d 244, 250

(4th Cir. 2001) (internal quotation marks omitted), and the

discovery of the actual dates of the Dreadlocks Picture—Pollin’s actual booking photograph—and the Short Hair

Picture were discovered by Moore’s counsel after the trial.

The district court also did not abuse its discretion in concluding that Moore exercised due diligence. First, as a general

matter, Moore made reasonable efforts before and during trial

to establish that Pollin had dreadlocks at the time of the carjacking. These efforts included making pre-trial requests of

the government for accurate photographs of Pollin, seeking

surveillance photographs of Pollin taken during an unrelated

10 UNITED STATES v. MOORE
narcotics investigation, questioning a friend of Pollin’s about

Pollin’s hairstyle, and cross-examining Detective Underhill

about his recollection of Pollin’s hair. With regard to the specific photo of Pollin taken on December 31, 2007, what must

be remembered is that the government not only represented to

Moore’s lawyer (and the jury) that the photo was taken on the

date inscribed on the picture, but the date was confirmed and

bolstered by the testimony of the government’s witness

Detective Underhill. While there may be times when due diligence requires an attorney not to accept at face value a representation made by the government, here the photo evidence

was created by law enforcement and could reasonably be presumed to be within the exclusive control of law enforcement

and hence the government, and the date stamp on the photo

reasonably presumed to be accurate. We cannot fault Moore’s

attorney for not pursuing the validity of the government’s representation further than he did. Although Moore did not seek

out Pollin’s attorney until after trial, we do not think that the

district court abused its discretion in finding that Moore satisfied the due diligence prong under these circumstances. And

finally, the district court did not abuse its discretion in concluding that the newly discovered evidence was not merely

cumulative or impeaching. 

With regard to the fourth prong of the Chavis Test, however, we believe the district court erred in concluding that the

newly discovered evidence was not material. A defendant satisfies the materiality prong by showing that the evidence was

"material to the issues involved." United States v. Robinson,

627 F.3d 941, 948 (4th Cir. 2010) (internal quotation marks

omitted). In evaluating the materiality prong, the district court

concluded that the newly discovered evidence was "tangentially relevant" to Moore’s contention that Pollin was the carjacker. J.A. 799. But the court nonetheless found that Moore

could not establish materiality because Moore put on two

defenses that the court found to be disingenuous. It is true that

part of Moore’s defense was establishing that he was present

at a violent altercation at another location at the time of the

UNITED STATES v. MOORE 11
carjacking and that a "junkie" committed the carjacking.

However, Moore’s defense also included pointing the finger

at Pollin as the more likely assailant, a defense that was not

only addressed during trial but was also raised during

Moore’s closing argument. At bottom, this case was about the

identity of the carjacker, a very close issue given the small

amount of the assailant’s face Roarty could see during the

incident. Accordingly, evidence bearing on the identification

of the carjacker was undoubtedly material to the issues

involved in this case. See United States v. Piazza, 647 F.3d

559, 569 (5th Cir. 2011) (agreeing with district court for proposition that "evidence is certainly material as it goes to

whether another person committed the acts of which the jury

found [the defendant] guilty" (internal quotation marks omitted)). A conclusion to the contrary in the context of this case

was error in our view.

Because the district court found that Moore could not satisfy the fourth Chavis factor, it did not rule definitively on the

fifth and final factor—whether the newly discovered evidence

would probably result in acquittal at a new trial. Having

reviewed the parties’ briefs and the record below, having had

the benefit of oral argument, and given the importance of the

evidence, we find that Moore can satisfy the fifth factor.

Accordingly, Moore is entitled to a new trial.4

III.

Moore also challenges the admission under Federal Rule of

Evidence 404(b) of evidence of his prior possession of certain

firearms. Because this issue is likely to recur on retrial, we

exercise our discretion to address the issue in this appeal. See

United States v. Ebersole, 411 F.3d 517, 535 (4th Cir. 2005);

see also Elm Grove Coal Co. v. Dir., O.W.C.P., 480 F.3d 278,

4Given our disposition of the newly-discovered-evidence issue, we need

not address Moore’s Brady claim. 

12 UNITED STATES v. MOORE
299 n.20 (4th Cir. 2007) ("We choose to address this discovery issue because it is likely to arise on remand.").

A.

At trial, the district court permitted the government to introduce evidence showing that Moore possessed a firearm on at

least three prior occasions: Mia Franklin testified that she had

previously seen Moore possessing a "revolver," J.A. 316, and

the government introduced a photograph of a semi-automatic

pistol belonging to Moore that was found in the apartment of

Moore’s girlfriend and another photograph showing Moore

holding a semi-automatic pistol.5

As Moore argues, revolvers and semi-automatic pistols are

not the same thing. "[A] revolver is a type of handgun having

a revolving cylinder containing chambers for cartridges. The

gun is fired by squeezing the trigger or cocking the hammer,

whereupon the cylinder rotates clockwise and aligns a chamber with the barrel." United States v. Precise Import Corp.,

458 F.2d 1376, 1378 (C.C.P.A. 1972). A semi-automatic pistol, on the other hand, does not have a rotating cylinder.

Instead, it has a removable magazine in its handle which

"utiliz[es] the energy of recoil to feed cartridges from a magazine to the chamber in the barrel." Id. at 1379. The firearm

used in the carjacking was a revolver, not a semi-automatic

pistol.

B.

Rule 404(b) prohibits evidence of other crimes or bad acts

committed by the defendant if offered "solely to prove a

defendant’s bad character, but such evidence may be admissible for other purposes, such as proof of motive, opportunity,

5Officer James Evans of the Aberdeen Police Department identified the

firearms in these photographs as semi-automatic pistols. Neither party disputes that description. 

UNITED STATES v. MOORE 13
intent, preparation, plan, knowledge, identity, or absence of

mistake or accident." United States v. Byers, 649 F.3d 197,

206 (4th Cir. 2011) (internal quotation marks and alterations

omitted). "Rule 404(b) is a rule of inclusion, admitting all evidence of other crimes or acts except that which tends to prove

only criminal disposition." Id. (internal quotation marks omitted).

Moore’s Rule 404(b) argument focuses primarily on the

district court’s decision to admit the semi-automatic-pistol

evidence. However, to the extent that Moore also contends

that Franklin’s testimony about his possession of a revolver

violated Rule 404(b), we find no abuse of discretion by the

district court. See id.

Moore’s possession of a revolver—the same type of gun

used in the carjacking—was directly relevant and necessary to

proving his guilt. See id. at 208 (evidence is relevant for Rule

404(b) purposes if it has "any tendency to make the existence

of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence" (internal quotation marks omitted)); id. at

209 ("Evidence is necessary where it is an essential part of the

crimes on trial, or where it furnishes part of the context of the

crime." (internal quotation marks omitted)). Therefore, we

cannot say that the district court "acted arbitrarily or irrationally in admitting [this] evidence." United States v. Benkahla,

530 F.3d 300, 309 (4th Cir. 2008) (internal quotation marks

omitted); see Byers, 649 F.3d at 206 (decision to admit Rule

404(b) evidence is not an abuse of discretion unless the decision was "arbitrary and irrational" (internal quotation marks

omitted)).

The admission of the semi-automatic-pistol evidence, however, presents a different issue. See United States v. Miller,

673 F.3d 688, 695 (7th Cir. 2012) ("If the prior possession

was of a different gun, then its value as direct or circumstan14 UNITED STATES v. MOORE
tial evidence . . . drops and the likelihood that it is being used

to show propensity to possess guns rises considerably.").

As noted above, evidence of prior bad acts is generally

admissible except when the evidence is used "to prove a person’s character in order to show that . . . the person acted in

accordance with the character." Fed. R. Evid. 404(b)(1). The

rule carves out this propensity character evidence from what

is otherwise "a rule of inclusion" because "evidence of a person’s character supplies an inadequate causal link between it

and the specific conduct sought to be established." United

States v. Queen, 132 F.3d 991, 994, 995 (4th Cir. 1997). The

district court accepted the government’s theory and admitted

the semi-automatic-pistol evidence to demonstrate that Moore

had the "opportunity" to possess and to access firearms. See

Fed. R. Evid. 404(b)(2). We find that the district court’s decision to admit this evidence for this reason was error.

At trial, Moore never contested the fact that he had previously possessed a firearm. Moreover, Franklin’s testimony

that she had previously seen Moore in possession of a

revolver established Moore’s access to the type of firearm that

was used in the carjacking. The evidence of Moore’s possession of a different type of firearm, introduced via Rule 404(b),

served only to establish Moore’s criminal disposition and was

therefore inadmissible. See United States v. Hawkins, 589

F.3d 694, 705 (4th Cir. 2009) (explaining that evidence of

defendant’s prior possession of a firearm would not be admissible under Rule 404(b) at a separate trial on charges that

defendant brandished a different firearm during a carjacking:

"There [is] simply nothing about [the defendant’s] being in

possession of a different firearm . . . that [is] related to any

of the elements of the carjacking counts."). Accordingly, we

find that the district court erred in finding the evidence admissible under Rule 404(b)(2). 

In reaching this conclusion, however, we do not foreclose

the possibility that the district court on retrial may find the

UNITED STATES v. MOORE 15
semi-automatic-pistol evidence admissible under a different

rule, see, e.g., United States v. LeCompte, 131 F.3d 767, 769

(8th Cir. 1997) ("[T]his Court’s holding that the evidence was

inadmissible under Rule 404 at the first trial does not foreclose consideration of admissibility under a different rule of

evidence on retrial."), or that the evidence at retrial may differ

significantly enough to warrant reconsideration of its admissibility under Rule 404(b), see Sejman v. Warner-Lambert Co.,

845 F.2d 66, 69 (4th Cir. 1988) (law-of-the-case doctrine does

not preclude reconsideration of issue resolved by appellate

court if "subsequent trial produces substantially different evidence" (internal quotation marks omitted)). Nonetheless, in

the context of the evidence presented in the trial that we have

reviewed, the district court abused its discretion by admitting

the semi-automatic-pistol evidence under Rule 404(b).6

IV.

For the foregoing reasons, we vacate Moore’s conviction

and remand for a new trial in accordance with this opinion. 

VACATED AND REMANDED

6Moore also challenges Roarty’s out-of-court identification prior to trial

and the district court’s factfinding at sentencing. Having reviewed the parties’ arguments, we find no error with regard to these two claims. 

16 UNITED STATES v. MOORE