Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 19-CF-0687 BRIAN E. MOORE, APPELLANT, V. UNITED STATES, APPELLEE. Appeal from the Superior Court of the District of Columbia (2018-CF3-011411) (Hon. Craig Iscoe, Motions Judge; Hon. Milton C. Lee, Jr., Trial Judge) (Argued January 13, 2022 Decided November 17, 2022) Sean R. Day for appellant. Katherine M. Kelly, Assistant United States Attorney, with whom Michael R. Sherwin, Acting United States Attorney, and Elizabeth Trosman and John P. Mannarino, Assistant United States Attorneys, were on the brief, for appellee. Before BECKWITH and EASTERLY, Associate Judges, and THOMPSON, Senior Judge. * Opinion by Senior Judge THOMPSON, dissenting in part, at page 51. * Judge Thompson was an Associate Judge of the court at the time of argument. She began her service as a Senior Judge on February 18, 2022. 2 EASTERLY, Associate Judge: Attorney John Harvey was appointed by the trial court to represent Brian Moore in a contempt proceeding after Mr. Moore allegedly violated an order prohibiting him from contacting his then-wife. But Mr. Harvey subsequently became a witness against Mr. Moore: Mr. Harvey was called by the United States government in a separate criminal case to testify about two private in- the-hallway-outside-the-courtroom mid-trial conversations during which Mr. Moore made hostile remarks about the District of Columbia Assistant Attorney General (AAG) who had been assigned to prosecute his contempt case. Based on Mr. Harvey’s inculpatory testimony, Mr. Moore was sentenced to an aggregate of eight years in federal prison for threatening a public official and obstructing justice (two counts each). Mr. Moore challenges his convictions on multiple grounds. We address only two: his argument that the evidence supporting his convictions was legally insufficient and his argument that the admission at his trial of Mr. Harvey’s testimony violated Mr. Moore’s evidentiary attorney-client privilege. Although we reject Mr. Moore’s sufficiency claims, we hold, based on the record in this case, that the trial court erred in ruling that Mr. Harvey’s conversations with Mr. Moore were not privileged and thus his testimony about these conversations was admissible 3 against Mr. Moore at trial. Further, because we conclude this erroneous evidentiary ruling was not harmless, we vacate Mr. Moore’s convictions. I. Sufficiency A. Trial Facts and Procedural History At Mr. Moore’s May 2019 jury trial for threatening a public official and obstructing justice, the government called three witnesses: the District of Columbia AAG who had prosecuted Mr. Moore for contempt, a Deputy United States Marshal assigned to investigate the threats against the AAG, and Mr. Harvey. Because Mr. Harvey was the only witness who actually heard what Mr. Moore said, the government’s case rested on his testimony. Mr. Harvey, a longtime member of the Superior Court’s Criminal Justice Act panel, 1 explained that he heard …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals