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United States v. Whitmore - 359 F.3d 609


Fed. R. Evid. 608(b) allows a party to attack the credibility of a witness by cross-examining him on specific instances of past conduct. Cross-examination pursuant to Fed. R. Evid. 608(b) is not confined to prior criminal convictions - they are governed by Fed. R. Evid. 609 - but the conduct must be probative of the witness's character for truthfulness. Fed. R. Evid. 608(b). It may not, however, be proven by extrinsic evidence. Under Fed. R. Evid. 608(b) a cross-examiner may inquire into specific incidents of conduct, but does so at the peril of not being able to rebut the witness's denials and the purpose of this rule is to prohibit things from getting too far afield - to prevent the proverbial trial within a trial.


Officer Bladden Russell of the District of Columbia Metropolitan Police Department (MPD), while patrolling the Fort Davis neighborhood in Southeast Washington, directed a crowd gathered at a bus stop to disperse. The crowd, with the exception of Whitmore, complied. Russell exited his car to approach Whitmore, and Whitmore fled. Whitmore successfully eluded Russell but MPD Officer Efrain Soto, Jr., who was also patrolling the neighborhood in his police cruiser, spotted Whitmore and gave chase, first in his car and then on foot. Soto noticed that Whitmore, while running, held his right hand close to his body at his waist and the right side pocket of his jacket. Soto apprehended Whitmore. Once Russell caught up to assist, Soto found a gun in a window well of the apartment building. The weapon (with four rounds of ammunition, one of which was chambered) showed signs that it had been recently thrown against the building: a piece of brick was stuck in its sight, there were scuff marks on it and it was covered with masonry dust. The police found nothing in the right pocket of Whitmore's jacket but did discover a small bag of cocaine base in his left pocket.

At trial Whitmore defended on the ground that Soto had fabricated the story about the gun and had planted the gun in the window well. Soto provided, almost exclusively, the evidence connecting Whitmore to the gun and Whitmore therefore sought to attack Soto's credibility in several ways. He was convicted by a jury on firearm and drug charges. He appealed the firearm conviction on the ground that the district court committed reversible error in preventing him at trial from attacking the credibility of the arresting officer. Whitmore also claims that the court erred at sentencing in concluding that his prior conviction constituted a "crime of violence" within the meaning of the United States Sentencing Guidelines.

Whitmore's other attempted impeachment matters involved the alleged suspension of Soto's driver's license and his alleged failure to pay child support. Whitmore sought to cross-examine Soto from a state document manifesting that Soto's Maryland driver's license had been suspended from 1998 to 2000 for failure to pay child support. According to Whitmore, Soto's conduct gave him a motive to lie about Whitmore and the gun in order to secure a conviction in case his supervisor discovered his suspended license. The district court prohibited cross-examination on both subjects, concluding the document Whitmore intended to cross-examine from was hearsay and observing that it "didn't understand" Whitmore's "bias argument."


Did the district court properly prohibit Whitmore from cross-examining the Soto?




The district court erred in prohibiting Whitmore from cross-examining the officer about certain instances of past conduct under Fed. R. Evid. 608(b). In doing so, the district court deprived defendant of any realistic opportunity to challenge the credibility of the only witness who testified that defendant possessed the gun in question. The copy of Soto's Maryland driving record provided sufficient basis for such cross-examination and defense counsel readily acknowledged that he did not seek to admit the record itself and would be bound by Soto's answers. The court apparently assumed, however, that Soto would simply deny that his license had been suspended, leaving the jury with a bare denial of a damaging accusation. The knowledge that he could be charged with perjury would encourage Soto to respond truthfully, even if he thought that Whitmore’s counsel could not impeach him further. Accordingly, in excluding cross-examination on these matters as well, the district court abused its discretion.

The fact that Officer Russell testified that Whitmore ran when confronted by Russell is of little importance in light of the cocaine base he was carrying. That another officer testified the gun showed signs it had been recently thrown against the wall of a nearby building does not say anything about who threw it. There were no fingerprints on the weapon. In fact, the only independent piece of evidence corroborating Soto's testimony connecting Whitmore to the gun was Russell's testimony that Whitmore was holding the right side of his jacket as he fled. Standing alone, this evidence would hardly sustain Whitmore's conviction. Under these circumstances, the government has not shown that a reasonable jury would have put aside relevant, impeaching evidence about the government's key witness and reached a similar verdict had it heard the excluded cross-examination. That error was not harmless. The government did not show that a reasonable jury would have put aside relevant, impeaching evidence about the government's key witness and reached a similar verdict had it heard the excluded cross-examination.

The judgment of Whitmore’s conviction under 18 U.S.C. § 922(g)(1) (felon in possession of a firearm) was vacated and remand for a new trial on that charge.

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