United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-2603

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United States of America, *

*

Plaintiff - Appellee, *

*

v. *

*

Dennis B. Moore, Sr., *

*

Defendant - Appellant. *

___________ Appeals from the United States

District Court for the

No. 97-2605 Western District of Missouri.

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United States of America, *

*

Plaintiff - Appellee, *

*

v. *

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Keven L. Wyrick, *

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Defendant - Appellant. *

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Submitted: January 14, 1998

Filed: June 26, 1998

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This opinion is consistent with the views expressed by Judge Floyd R. Gibson *

at the panel’s conference following oral argument. Illness has prevented Judge Gibson

from reviewing the opinion, which is being filed to avoid undue delay. 

The HONORABLE D. BROOK BARTLETT, United States District Judge for 1

the Western District of Missouri.

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Before LOKEN, FLOYD R. GIBSON, and MURPHY, Circuit Judges. *

___________

LOKEN, Circuit Judge.

Dennis B. Moore appeals his conviction for engaging in a continuing criminal

enterprise (CCE), committing murder to further the CCE, manufacturing marijuana, and

using a firearm in connection with a drug trafficking offense. Keven Wyrick appeals

his conviction for committing murder to further the CCE and conspiring to distribute

marijuana. The district court sentenced both defendants to life in prison. On appeal, 1

they challenge the sufficiency of the evidence and raise various pretrial, evidentiary,

and jury instruction issues. We affirm.

I. Sufficiency of the Evidence

Moore and Wyrick argue the evidence was insufficient to convict them of murder

in furtherance of a CCE, a violation of 21 U.S.C. § 848(e)(1)(A). Wyrick also

challenges his conspiracy conviction on this ground. We view the evidence in the light

most favorable to the jury verdict and will reverse a conviction for insufficient evidence

only if a "reasonable fact-finder must have a reasonable doubt about an essential

element of the offense." United States v. Spence, 125 F.3d 1192, 1193 (8th Cir. 1997),

cert. denied, 118 S. Ct. 1544 (1998). 

The government introduced evidence that Moore began distributing marijuana

in the early 1980's, enlisting others to help him, including Orville Childress. Elmont
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Kerns and Bill Wayne Price were two of Moore’s marijuana suppliers. Moore stored

marijuana, weapons, and money in local stash houses operated by various people,

including Mike Mason, Moore’s brother-in-law. Moore regularly used violence to

collect money and enforce discipline within the organization. Wyrick distributed drugs

and performed strong-arm and collection work for Moore. Wyrick’s delivery helper,

Steve Lehman, eventually left Wyrick when he threatened to kill any police officer that

tried to stop him. 

In the late 1980's, Moore ruined two kilograms of cocaine he had bought from

Price on credit for $72,000. Moore obtained $70-80,000 of marijuana on consignment

from Kerns, intending to pay Price with the sale proceeds. When Kerns demanded

payment for the marijuana, Moore tried to shift responsibility for the debt to Childress

and then decided to kill Kerns. Moore first planned to have Wyrick kill Kerns and then

Childress kill Wyrick, so the killings would look like a drug deal gone bad, but

Childress refused to participate. Wyrick agreed to murder Kerns for $10,000, knowing

that Moore’s dispute with Kerns concerned a drug debt related to their marijuana

trafficking. Moore and Wyrick recruited Terry Wright to help commit the murder.

While Moore planned the murder, Wyrick obtained a pistol. On June 27, 1989, Wyrick

and Wright entered Kerns’s house on a pretense. Wyrick fired several times, hitting

Kerns. Wyrick and Wright left in Wright’s car, and Wyrick threw pieces of the firearm

out the car window. Steve Lehman disposed of their clothing. Wyrick told Lehman

he had just murdered Elmont Kerns.

Kerns’s body was discovered with many notebooks showing large marijuana

transactions between Kerns, Moore, and other traffickers. Entries showed Moore owed

Kerns $404,938 and payments by Moore totaling $247,580. Moore disposed of his

similar drug records within days of the murder. 

After Moore lost Kerns as a supplier, Price was arrested and jailed in April,

1990. When Childress and two other conspirators were subsequently arrested, Moore
Wyrick argues that the term “continuing criminal enterprise” in 21 U.S.C.

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§ 848(e)(1)(A) is not defined and is unconstitutionally vague because it has “no

definite, commonly understood meaning,” and that § 848(e) is unconstitutionally vague

as applied to him because he did not know the full extent of Moore’s CCE activities.

We disagree. We upheld § 848(c), which defines “continuing criminal enterprise” for

purposes of § 848(a), against a constitutional vagueness challenge in United States v.

Kirk, 534 F.2d 1262, 1277-78 (8th Cir. 1976), cert. denied, 433 U.S. 907 (1977).

Section 848(e) prohibits murder by a person “working in furtherance of a continuing

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hired an attorney for the three and approached James Clark to murder the prosecutor

and a cooperating witness, but Clark was arrested on other criminal charges. Despite

these blows to his organization, Moore continued to distribute marijuana, enlisting his

son and a former babysitter to help. He arranged numerous armed robberies to fund

marijuana purchases after a police raid in May 1992 left him short of money. Moore

was finally arrested in November 1994. Wyrick continued to buy and sell marijuana

until indicted in 1994.

To sustain convictions for murder in violation of 21 U.S.C. § 848(e)(1)(A), an

offense for which the death penalty is authorized, the government must prove that

Moore and Wyrick were “engaged in or working in furtherance of” Moore’s CCE; that

Wyrick intentionally killed Kerns and Moore procured the killing; and “that there was

a substantive connection between the killing and the CCE.” To sustain Wyrick’s

conviction for conspiracy to distribute marijuana, the government must demonstrate that

such a conspiracy existed, and that Wyrick knew of and intentionally joined the

conspiracy. See United States v. Jones, 101 F.3d 1263, 1267 (8th Cir. 1996), cert.

denied, 117 S. Ct. 1566 (1997). As our brief summary of the trial evidence makes

clear, the government presented more than sufficient evidence to prove that Moore’s

organization was a CCE as defined in 21 U.S.C. § 848(c), that Moore procured and

Wyrick committed Kerns’s murder working in furtherance of that CCE, and that

Wyrick knowingly participated in the marijuana distribution conspiracy. Thus, the

evidence was sufficient to sustain all the convictions.2
criminal enterprise.” Like the Seventh Circuit, we find nothing unconstitutionally vague

in this language. See United States v. Cooper, 19 F.3d 1154, 1165 (7th Cir. 1994).

And like the defendant in Cooper, Wyrick was close enough to Moore, the CCE

kingpin, to be aware that Moore asked Wyrick to kill Kerns to eliminate a drug debt

and thereby further a very substantial and continuing drug trafficking enterprise.

Wyrick also argues the district court erred in refusing to give his requested jury 3

instructions regarding multiple conspiracies. Instead, with Wyrick’s consent, the court

gave the following instruction after its marijuana conspiracy instruction:

If you have a reasonable doubt as to whether Keven Wyrick knowingly

and intentionally joined in the agreement or understanding referred to in

[the conspiracy instruction], then you must find him not guilty of the

offense submitted in [that instruction].

Given the overwhelming evidence of one marijuana conspiracy, and the court’s explicit

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II. Wyrick’s Motion To Sever

Wyrick argues the district court erred in denying his pretrial motion to sever. He

contends the jury could not compartmentalize the vast amounts of evidence against codefendant Moore, there was a severe danger of spillover from this evidence, there were

multiple conspiracies including many not involving Wyrick, and there were Bruton

problems related to Moore’s hearsay statements. Although Moore’s conspiracy had

many facets, it was still only one conspiracy. The trial involved only two defendants

and was not overly complex. Wyrick’s more limited role in the conspiracy and the

disparity in the evidence against Wyrick and Moore did not warrant severance, and the

risk that jurors would be unable to compartmentalize the evidence or that evidence

against Moore would spill over to Wyrick was minimized by the court’s ongoing

limiting instructions. See United States v. Kime, 99 F.3d 870, 880 (8th Cir. 1996), cert.

denied, 117 S. Ct. 1015 (1997). Wyrick’s Bruton claim rests on statements that did not

incriminate him, so the joint trial did not implicate his right to confront and crossexamine Moore. In sum, the court’s refusal to sever was not an abuse of discretion.3
instruction that to convict the jury had to find that Wyrick joined the conspiracy as

defined, there was clearly no plain error in giving this instruction with Wyrick’s

consent. See United States v. Zimmerman, 832 F.2d 454, 457-58 (8th Cir. 1987).

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III. Alleged Multiplicity of the Murder Counts

Counts III and IV of the indictment separately charged Moore and Wyrick with

murdering Kerns in furtherance of a CCE and while engaged in a marijuana distribution

conspiracy, two types of murder expressly prohibited by 21 U.S.C. § 848(e)(1)(A). In

Rutledge v. United States, 116 S. Ct. 1241, 1250 (1996), the Supreme Court held that

a drug conspiracy violation of 21 U.S.C. § 846 is a lesser included offense of a CCE

violation of 21 U.S.C. § 848. Therefore, Moore and Wyrick could not be convicted or

punished for both alleged murders, and Counts III and IV were potentially

multiplicitous. On appeal, they contend the district court should have dismissed one

of the counts for multiplicity or required the government to elect between them. 

Responding to this issue, the district court submitted the two counts together on

a single verdict form and instructed the jurors that if they found a defendant guilty of

murder in furtherance of a CCE, they need not consider the charge of murder while

engaged in a marijuana distribution conspiracy. This eliminated the risk of

multiplicitous convictions or punishment, an appropriate remedy for multiplicity. See

United States v. Sue, 586 F.2d 70, 71 (8th Cir. 1978) (per curiam). Moore and Wyrick

argue they were nonetheless prejudiced because the indictment suggested more criminal

activity than actually occurred. However, the jury did not see the indictment. Thus,

as submitted, the murder charge was no different than if the government had alleged
Wyrick also argues the court erred by framing the alternative murder charge in 4

two separate instructions, instead of in the one instruction Wyrick proposed. That

contention is without merit. Moore on the other hand argues the district court erred by

instructing that the jury “must” find him guilty if they found the necessary facts true

beyond a reasonable doubt. That contention is foreclosed by our decision in United

States v. Kroh, 915 F.2d 326, 335 (8th Cir. 1990) (en banc).

We note that Wyrick does not (and cannot) argue that his right to a fair trial was 5

prejudiced, because even if Slyman would have been an impartial juror, he was

replaced by another, equally impartial juror. However, the government does not

contend that the alleged error is for that reason unreviewable.

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alternative means to commit the offense in a single count, which Fed. R. Crim. P.

7(c)(1) expressly permits. We conclude the district court did not abuse its discretion.4

IV. Jury Selection Issues

Moore and Wyrick argue the district court erred in sustaining government

challenges for cause to venirepersons Martin Slyman, Jerilyn Hatfield, Odie Boney, and

Charles Marsh. They further challenge the government’s use of peremptory challenges

to strike five of the seven remaining African-American venirepersons. See Batson v.

Kentucky, 476 U.S. 79 (1986).

A. Venireman Slyman. During voir dire, Slyman said he knew Wyrick and that

Wyrick’s father, a potential defense witness, used to be his supervisor. Questioned

further in chambers, Slyman said he had rooted for Wyrick at boxing matches, and he

had “admiration” for Wyrick after reading an article in the KANSAS CITY STAR about

Wyrick’s boxing career and efforts “to make changes to turn his life around and that

type of thing.” Though Slyman said he could be a fair and impartial juror, the district

court granted the government’s motion to strike Slyman for cause, commenting this was

“[o]ne of the clearest cases I’ve ever seen of partiality.” Wyrick argues the court

improperly ignored the presumption that prospective jurors are unbiased.5
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When a prospective juror is challenged for cause, the trial court’s ruling “ought

not be set aside by a reviewing court, unless the error is manifest,” that is, unless the

for-cause ruling is manifestly wrong on the face of the trial record. Irvin v. Dowd, 366

U.S. 717, 723 (1961) (quotation omitted). That was the situation in Irvin, where many

of the jurors had admitted during voir dire they believed the defendant guilty. Here, on

the other hand, the voir dire record reveals a basis for partiality, but Slyman said he

could be an impartial juror. The district court’s decision to strike him for cause was,

in essence, a finding that Slyman’s partiality denial was not credible. Such a finding

cannot be manifest error; indeed, it is virtually unassailable on appeal. Thus, the

court’s ruling was not reversible error. See United States v. Mills, 987 F.2d 1311,

1314 (8th Cir.), cert. denied, 510 U.S. 953 (1993). 

B. Venirepersons Hatfield, Boney, and Marsh. Moore and Wyrick argue the

district court erred in sustaining the government’s for-cause challenges to three jurors

who expressed reservations about their ability to apply the death penalty. The

applicable standard is “whether the juror’s views would prevent or substantially impair

the performance of his duties as a juror in accordance with his instructions and his

oath.” Wainwright v. Witt, 469 U.S. 412, 424 (1985) (quotation omitted). These

venirepersons expressed serious doubt as to their ability to consider imposition of the

death penalty. When the prosecutor asked Ms. Hatfield if she could, under any

circumstances, “consider imposing a death sentence on somebody who didn’t pull the

trigger,” she responded, “No, I don’t think so.” When defense counsel pressed the

issue, she replied, “I really don’t think so.” Mr. Boney stated that he would consider

the death penalty “if a person murdered like maybe 100 or 200 people,” but not for

“one or two.” Mr. Marsh said that if he were choosing between life in prison without

possibility of parole and the death penalty, he would “automatically” opt for

imprisonment, adding that “it’s wrong to take a life.” Although defendants point to

other testimony suggesting these venirepersons could follow the rule of law, the court

found that each would be unable to do so. The record fairly supports these findings and
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on this issue, “deference must be paid to the trial judge who sees and hears the juror.”

Witt, 469 U.S. at 426. The court did not err in striking these prospective jurors.

C. The Batson challenge. Moore and Wyrick argue the government struck five

of the remaining seven African-American venirepersons for discriminatory reasons.

Although they are white, Moore and Wyrick have standing to raise this issue. See

Powers v. Ohio, 499 U.S. 400, 416 (1991). The government explained that it struck

four of the venirepersons because of their opposition to the death penalty and the fifth

because he could not put aside a bias against police officers. Defendants had the

burden to prove “purposeful discrimination.” The district court found “no reason to

believe that race played any role” in the government’s decisions to strike. After

carefully reviewing the record, we conclude the court did not clearly err in rejecting

defendants’ Batson challenges. See United States v. Jenkins, 52 F.3d 743, 746 (8th

Cir. 1995) (standard of review). 

V. Evidentiary Issues

A. Testimony of Steve Lehman. Government witness Steve Lehman testified

that, prior to Wyrick’s involvement with the marijuana conspiracy, Lehman and Wyrick

sold drugs and robbed other drug dealers to supply their own drug habits, and these

activities brought them to the attention of drug kingpin Moore. Wyrick objected to this

testimony as prejudicial evidence of prior bad acts not relevant to any proper purpose

under Fed. R. Evid. 404(b). The district court admitted the testimony because it was

“intimately related to and involved with the circumstances of the alleged offenses,” and

because its probative value outweighed the danger of unfair prejudice. Wyrick argues

this ruling was reversible error. 

Rule 404(b) “permits the introduction of evidence of other criminal activity to

complete the story of the crime on trial by proving its immediate context,” United

States v. Howard, 504 F.2d 1281, 1284 (8th Cir. 1974), or by explaining the
Rule 613(b) provides: “Extrinsic evidence of a prior inconsistent statement by 6

a witness is not admissible unless the witness is afforded an opportunity to explain or

deny the same and the opposite party is afforded an opportunity to interrogate the

witness thereon, or the interests of justice otherwise require.”

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circumstances of the alleged crime or the relationship between alleged conspirators, see

United States v. McGuire, 45 F.3d 1177, 1188 (8th Cir.), cert. denied, 515 U.S. 1132

(1995). After careful review of the testimony in question, we conclude the district

court did not abuse its discretion in overruling Wyrick’s objections. See generally

United States v. Masters, 622 F.2d 83, 85-88 (4th Cir. 1980).

B. Impeachment of James Clark. Prior to trial, James Clark gave a taperecorded statement to federal agents in which he said that Moore arranged to hurt

people and set up armed robberies, that Wyrick and Childress were the hit men, that

Moore admitted plotting Kerns’s murder, that Moore wanted Clark or Childress to kill

Mark Williams, and that Moore told Clark to kill a cooperating witness. Called as a

trial witness by Moore, Clark testified that Childress rather than Moore hired Clark to

hurt or murder people, including the cooperating witness, and that Childress set up the

armed robberies. In other words, Clark’s testimony labeled Childress as leader of the

CCE. Moore and Wyrick then moved to prevent the government from introducing

Clark’s prior statement during its rebuttal case. The district court found the statement

admissible to impeach Clark’s trial testimony because “[t]he statement in its entirety

is inconsistent with the story that was told yesterday from the witness stand.” The

court concluded that the entire statement must be admitted “to understand and

appreciate [its] inconsistent nature.” Responding to defendants’ contention that Clark

was not given an opportunity to respond to the prior statement during his trial

testimony, the court noted that the government in cross examination alluded to the prior

statement but did not confront Clark with each specific portion of the taped statement.

The court ruled that Fed. R. Evid. 613(b) does not require an opportunity to respond 6

before the prior statement is admitted, and that defendants would be permitted to recall

Clark to respond to the statement after it was admitted into evidence.
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On appeal, Moore and Wyrick argue the taped statement should have been

redacted because only portions were inconsistent. But a prior statement need not be

“diametrically opposite” to be inconsistent, and the trial judge has “considerable

discretion” to determine when a statement is inconsistent with the witness’s trial

testimony. See United States v. Rogers, 549 F.2d 490, 496 (8th Cir. 1976), cert.

denied, 431 U.S. 918 (1977). The district court did not abuse its discretion in admitting

the entire statement to convey the true extent of its inconsistency. 

Defendants further argue that the taped statement was inadmissible because

Clark had no opportunity to respond to each inconsistency before its admission.

Traditionally, courts have insisted that a witness be directed to a prior inconsistent

statement during cross-examination, before the statement is admitted. But Rule 613(b)

provides that “the witness [have] an opportunity to explain and the opposite party an

opportunity to examine on the statement, with no specification of any particular time

or sequence.” Rule 613 Advisory Committee Note to Subdivision (b); see United

States v. Sutton, 41 F.3d 1257, 1260 (8th Cir. 1994); McCormick on Evidence § 37

(4th ed. 1992). One method of providing such an opportunity is to allow recall of the

witness after the prior statement is admitted. See United States v. Lynch, 800 F.2d

765, 770 (8th Cir. 1986). 

In this case, although the government during cross-examination did not confront

Clark with every statement on the tape, he was given a substantial opportunity to

explain his prior statements before the tape was admitted -- the government asked

whether he remembered making a tape-recorded statement to federal agents in the fall

of 1992, and whether he remembered telling them that Moore hired Wyrick to hurt

people and that Moore told Clark to kill the cooperating witness and wanted Clark to

kill Mark Williams. In response, Clark vacillated between denying having made the

statements and claiming they were inaccurate because he was under the influence of

drugs at the time of the interview. Concluding “it would have been futile for the

government to have gone through any more . . . the pattern was clear,” the court
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admitted the entire statement and allowed defense counsel to recall Clark after the

government’s rebuttal. This ruling was consistent with the plain language of Rule

613(b) and sensibly resolved the issue. There was no abuse of the court’s discretion.

C. Admission of Cocaine Sales Evidence. The superseding indictment alleged

a conspiracy to manufacture and distribute marijuana, but Count One more broadly

accused Moore of a CCE comprised of a series of drug violations “including but not

limited to, the offenses charged in [the] Superseding Indictment, which violations and

others were part of a continuing series of felony violations of Subchapters I and II of

the Comprehensive Drug Abuse Control Act of 1970.” At trial, Moore and Wyrick

objected to the government’s evidence of cocaine distribution, arguing that this

evidence was not contemplated by the indictment. The court admitted the evidence,

concluding that Count One included the possibility of cocaine distribution, and finding

that defendants had sufficient notice cocaine evidence might be introduced. The court

later instructed the jury that cocaine distribution was one possible predicate offense to

Moore’s alleged CCE activities. On appeal, Moore and Wyrick argue this amounted

to an improper constructive amendment of the indictment.

There is no requirement that the drug offenses predicate to a CCE violation be

specifically listed in the indictment, provided the defendant had actual notice of the

charges. See United States v. Johnson, 982 F.2d 1192, 1197 (8th Cir. 1992); United

States v. Becton, 751 F.2d 250, 256-57 (8th Cir. 1984); United States v. Simmons, 923

F.2d 934, 952 (2nd Cir.), cert. denied, 500 U.S. 919 (1991); United States v. AlvarezMoreno, 874 F.2d 1402, 1408-10 (11th Cir. 1989), cert. denied, 494 U.S. 1032 (1990).

Given the broad language of Count One, it cannot be said that Moore and Wyrick were

convicted of a CCE charge not made in the indictment, the kind of constructive

amendment that caused us to reverse in United States v. Yeo, 739 F.2d 385, 387 (8th

Cir. 1984). That reduces the issue to one of notice or surprise. See United States v.

Wessels, 12 F.3d 746, 750-51 (8th Cir. 1993), cert. denied, 513 U.S. 831 (1994).
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Wyrick and Moore had repeated actual notice of the government’s intent to

introduce cocaine distribution evidence -- from the broad language of Count One, from

the government’s pretrial report detailing the conspiracy’s cocaine trafficking, and from

the government’s opening statement, which advised that “[t]he evidence in this case

will show a cocaine distribution scheme . . . overseen, again, by the Defendant Dennis

B. Moore, a scheme in which he used one of his marijuana sources to obtain cocaine

which he would then, in turn, distribute locally.” Indeed, in objecting to this evidence

at trial, defense counsel admitted awareness “that cocaine might play into the case a

little bit.” Thus, the district court did not err in admitting cocaine distribution evidence

and permitting its use to establish one of the predicate drug trafficking violations

necessary to prove a CCE.

D. Admission of Firearms. Wyrick and Moore argue that eight firearms

delivered by conspirators to Michael Mason should not have been admitted at trial

because they were irrelevant and unfairly prejudicial. See Fed. R. Evid. 401, 403.

Given the extensive testimony of gun use and intimidation by members of the drug

trafficking conspiracy, the firearms were relevant to the government’s case and not

unfairly prejudicial. See United States v. Dierling, 131 F.3d 722, 732 (8th Cir. 1997).

E. Moore’s Motion To Suppress. Moore argues the district court erred by

overruling his motion to suppress evidence seized during a May 1992 warrant search

because there was no probable cause to support issuing the warrant and because the

warrant’s language was so unspecific as to constitute an unconstitutional “general”

warrant. We disagree. The warrant’s supporting affidavit recited that a reliable

informant had observed controlled substances, drug paraphernalia, and weapons at

Moore’s residence in April and early May of 1992, and that police had corroborated

much of the informant’s information. This affidavit supplied a sufficient basis for the

magistrate to conclude there was a “fair probability” the described items would be

found in Moore’s home on May 12. See Illinois v. Gates, 462 U.S. 213, 238 (1983).

Nor was the warrant’s reference to “drug paraphernalia” impermissibly broad or vague.
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In the context of a search for marijuana, “use of ‘paraphernalia’ was sufficiently

definite to make a violation of Fourth Amendment rights highly unlikely.” United

States v. Johnson, 541 F.2d 1311, 1315 (8th Cir. 1976). The warrant in this case is less

broad than the one challenged in Johnson, as it referred to “drug” paraphernalia.

VI. Witness Credibility Instructions

Wyrick and Moore argue the district court erred by refusing to give their

requested cautionary instructions regarding witnesses who testified pursuant to plea

agreements and witnesses who testified falsely at prior proceedings. Moore also

alleges error in the refusal to give his requested accomplice witness instruction. The

court gave instructions, based upon Eighth Circuit Model Instruction 4.04, advising the

jury to give the testimony of immunized witnesses such weight as the jurors thought it

deserved, advising the jurors in weighing credibility to “consider . . . whether that

witness said something different at an earlier time,” and cautioning that the fact that

trial witnesses pleaded guilty to a crime for which Moore and Wyrick were on trial

must not be considered as evidence of their guilt. These instructions fairly covered “the

substance of the requested instruction[s].” United States v. Walker, 97 F.3d 253, 255

(8th Cir. 1996). Failure to give an accomplice credibility instruction was not reversible

error because the testimony was amply corroborated. See United States v. McGinnis,

783 F.2d 755, 758 (8th Cir. 1986); cf. United States v. Einfeldt, 138 F.3d 373, 379 (8th

Cir. 1998).

The judgments of the district court are affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.