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United States v. Whitmore

March 05, 2004

UNITED STATES OF AMERICA, APPELLEE
v.
GERALD F. WHITMORE, APPELLANT



Appeal from the United States District Court for the District of Columbia (No. 02cr00269-01)

Before: Henderson and Garland, Circuit Judges, and Silberman, Senior Circuit Judge.*fn1

The opinion of the court was delivered by: Karen Lecraft Henderson, Circuit Judge

Argued November 17, 2003

Gerald F. Whitmore was convicted by a jury on firearm and drug charges. He appeals 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 (U.S.S.G.). We conclude that the district court erred in prohibiting Whitmore from crossexamining the officer about certain instances of past conduct under Fed. R. Evid. 608(b). In doing so, the court deprived Whitmore of any realistic opportunity to challenge the credibility of the only witness who testified that Whitmore committed the firearm offense. That error was not harmless. We therefore reverse Whitmore's firearm conviction and remand for a new trial on that charge. Because of this holding, we do not reach Whitmore's sentencing claim.

I. BACKGROUND

On June 20, 2002, Whitmore was charged with one count of unlawful possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1), and simple possession of a controlled substance (cocaine base), in violation of 21 U.S.C. § 844(a). On November 5, 2002, a jury convicted him on both counts. On January 31, 2003, the district court sentenced Whitmore to concurrent prison terms of 83 months on the firearm count and 12 months on the drug possession count, followed by a three-year term of supervised release.

Viewed in the light most favorable to the government, see United States v. Graham, 83 F.3d 1466, 1470 (D.C. Cir. 1998), the evidence at trial established that on the evening of November 1, 2001, 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. Russell pursued him on foot and noticed that Whitmore, while running, held his right hand close to his body at his waist and the right side pocket of his jacket.

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 also noticed Whitmore's right hand holding the right side of his jacket. While still in the cruiser, Soto saw Whitmore throw a gun towards an apartment building next to an alley Whitmore ran into. Shortly thereafter, 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,*fn2 the evidence connecting Whitmore to the gun and Whitmore therefore sought to attack Soto's credibility in several ways. He first attempted to call three defense witnesses - Jason Cherkis, Bruce Cooper and Kennith Edmonds - to testify regarding Soto's "character for truthfulness" under Fed. R. Evid. 608(a). Cherkis, a reporter with the City Paper, wrote an article in January 2000 reporting that Soto and three other MPD officers were the target of multiple complaints from residents of the MPD's Sixth District, the district in which Whitmore was arrested. According to Whitmore, Cherkis would testify, based on conversations he had with his sources for the article, that Soto had a reputation as a liar. Cherkis moved to quash Whitmore's subpoena on grounds of the First Amendment and the District's reporter shield law. D.C. Code Ann. §§ 16-4701 et seq. Before trial, the court excluded Cherkis's testimony under Fed. R. Evid. 608(a) because Cherkis was not personally acquainted with Soto and because the foundation of Cherkis's testimony - interviews that he conducted for the 2000 article - was too remote in time to be relevant. Appellee's App. at 26-28.

Bruce Cooper was a local criminal defense counsel who, Whitmore claimed, would testify regarding both Soto's reputation for untruthfulness within what he called the "court community" and Cooper's own opinion that Soto was untruthful. Whitmore proffered that Cooper would testify that several defense counsel thought Soto was a liar and that Cooper had the same opinion based on having tried many cases in which Soto was a government witness. The district court excluded Cooper's reputation testimony because, even assuming the "court community" constituted a recognized community, Cooper did not know Soto's reputation within the entire "court community" and did not live in Soto's neighborhood. The court also rejected Cooper's opinion testimony under Fed. R. Evid. 403 because it was "inherently biased," Appellee's App. at 359, and unduly prejudicial in that Cooper's contacts with Soto arose from his representation of criminal defendants against whom Soto testified and because Cooper's testimony would lead to additional delay - that is, the court would have to allow the government to explore the circumstances underlying Soto's testimony in the other cases about which Cooper intended to testify.

Kennith Edmonds, whom Whitmore also sought to call as both a reputation and opinion witness, was an acquaintance of Soto who used to live in the neighborhood where Soto worked and who saw Soto regularly until roughly five years before the trial, when Edmonds moved away. Whitmore proffered that Edmonds would say that he still saw Soto a few times each week when Edmonds returned to his old neighborhood to visit his mother and still maintained contacts with others in the neighborhood who knew Soto. Edmonds's proffered opinion evidence was based on two incidents: (1) Soto had participated in the arrest of a friend of his and, when Edmonds attempted to collect his friend's property from the police, Edmonds was told that there was no property to collect; and (2) Soto and other officers wrongly arrested Edmonds for drug possession in 1995. The court excluded Edmonds's reputation testimony because he had not lived in the neighborhood where Soto worked for some time; it excluded his opinion testimony because it questioned whether Soto was involved in the events on which Edmonds based his opinion. It also excluded Edmonds's testimony in its entirety under Fed. R. Evid. 403, concluding that the minimal probative value of Edmonds's evidence was outweighed by unfair prejudice, including the government's resulting need to examine the events underlying Edmonds's testimony.

In addition to these three character witnesses, Whitmore also sought to impeach Soto by cross-examining him on three subjects: (1) a D.C. Superior Court judge's finding that Soto had lied when Soto testified before him in a 1999 criminal trial; (2) the suspension of Soto's driver's license and Soto's failure to report the suspension to his supervisors; and (3) Soto's failure to pay child support. Regarding the first, the Superior Court judge had rejected Soto's testimony that he had seen a bag of drugs with a blue line in the defendant's hand. The judge found that testimony "palpably incredible," Appellant's App. at 73, and concluded that "Officer Soto lied." Id. at 79. The judge therefore granted the defendant's motion for acquittal. The U.S. Attorney's Office subsequently investigated Soto for perjury but declined to prosecute him. It did, however, put Soto on a " Lewis list," a watch list for officers under investigation. See United States v. Bowie, 198 F.3d 905, 908 (D.C. Cir. 1999) (describing Lewis list established after Lewis v. United States, 408 A.2d 303, 306 (D.C. 1979)).

The government moved in limine to exclude crossexamination on the subject under Fed. R. Evid. 608(b) as well as Fed. R. Evid. 403, contending that the judge's finding was only an allegation of misconduct and therefore not probative of Soto's truthfulness and, in any event, was unfairly prejudicial. Whitmore argued for its admissibility as a specific instance of misconduct under Fed. R. Evid. 608(b) and as "motive" evidence under Fed. R. Evid. 404(b). According to Whitmore, Soto had reason to lie in Whitmore's case in order to curry favor with the government and rehabilitate himself following the local judge's finding. The district court disagreed and barred cross-examination under Fed. R. Evid. 403, noting that the finding was not a perjury conviction, that the present jury might rely too heavily on the finding in making its own credibility determination regarding Soto and, finally, that any cross-examination would delay the trial and could confuse the jury because the government would have to be given the opportunity to explore the finding before the jury.

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. Appellant's App. at 107. MPD regulations require all officers to maintain a valid driver's license and to notify their supervisor of any change in status. Id. at 110. Whitmore invoked both Fed. R. Evid. 608(b) and Fed. R. Evid. 404(b) in support of crossexamination on these subjects: (1) under Fed. R. Evid. 608(b), Soto's alleged failure to report his suspended license and to make child support payments would reveal his inclination to dissemble and evade the law; and (2) under Fed. R. Evid. 404(b), 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 ...


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