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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 24, 2003 Decided December 19, 2003
No. 03-3008
IN RE: SEALED CASE
Appeal from the United States District Court
for the District of Columbia
(No. 01cr00270–05)
Leslie Ann Gerardo, appointed by the court, argued the
cause and filed the brief for appellant.
Mary B. McCord, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, John R. Fisher, Thomas J.
Tourish, Jr. and Alyse Graham, Assistant U.S. Attorneys.
Before: GINSBURG, Chief Judge, and EDWARDS and ROGERS,
Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: The appellant was convicted by a
jury of one count of conspiracy to illegally purchase and
unlawfully transport firearms, see 18 U.S.C. § 371, and one
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
count of unlawful transportation and aiding and abetting the
transportation of firearms, see id. §§ 922(a)(3), 924(a)(1)(D),
2. The only substantial question on appeal is whether appel-
lant suffered substantial prejudice as a result of the exclusion
of character evidence of his reputation for truthfulness and
honesty. The government concedes that the exclusion of the
evidence was error as to the conspiracy count, and we agree
in view of the purpose, means, and overt acts charged in the
indictment as well as the expert evidence presented by the
government. Whether the exclusion of such evidence also
was error with respect to the unlawful transportation count is
a closer question. We need not decide that question, howev-
er, for we hold that any error was harmless. See Kotteakos v.
United States, 328 U.S. 750 (1946). The excluded evidence
was cumulative of the character evidence before the jury and
unlikely to overcome the strong evidence of appellant’s guilt.
Accordingly, we affirm the judgment of conviction.
I.
The evidence showed that Special Agent Susan Poorbaugh,
Bureau of Alcohol, Tobacco, and Firearms (‘‘ATF’’), began an
investigation into an illegal firearm recovered in the District
of Columbia and traced to a purchaser, Quentin Jackson, in
Atlanta, Georgia. Agent Poorbaugh discovered that Jackson
had purchased multiple firearms from various Atlanta dealers
on October 31, 1998, January 8, 1999, and May 15, 1999, and
that his roommate, Michael Jones, had also purchased multi-
ple firearms on May 15, 1999 and July 3, 1999. Additional
investigation traced the firearms purchased by Jackson and
Jones to Thomas Bing, a District of Columbia native, and
several of his associates, including appellant.
The indictment charged appellant and two others with one
count of conspiracy to illegally purchase and unlawfully trans-
port firearms, see 18 U.S.C. § 371, and various counts of
unlawful transportation and aiding and abetting the transpor-
tation of firearms, see id. §§ 922(a)(3), 924(a)(1)(D), 2, of
which appellant was indicted on two counts relating to events
on January 8, 1999 and May 15, 1999. One defendant entered
3
into a plea agreement and a second defendant was found not
guilty by the jury.
At the trial, the government introduced evidence that ap-
pellant was involved in a ‘‘straw purchase’’ scheme. Special
Agent Joseph L. Bisbee, ATF, testifying as an expert in
firearms trafficking, explained that, in ‘‘straw purchases,’’ the
ultimate purchaser will ask a third party to purchase a
firearm so that either the ultimate purchaser will not be
subject to a background check or the ultimate purchaser’s
name will not appear on the ATF Form 4473 required for all
firearm purchases from licensed gun dealers. Pursuant to
various plea agreements Bing, Jackson, and Jones testified
regarding appellant’s involvement in such a scheme whereby
Jackson and Jones would purchase firearms for Bing and
appellant, who would then transport the firearms to the
District of Columbia for resale. Dwan Anderson, who was
not charged with a crime relating to the ATF investigation
underlying appellant’s indictment and who testified under
subpoena, corroborated the co-conspirators’ testimony about
events on May 15, 1999. Anderson testified that appellant
traveled with Bing to Atlanta in May 1999 and that he saw
appellant while there moving gun boxes from the back seat to
the trunk of appellant’s car. The government also introduced
appellant’s employment records from Hecht’s department
store in the District of Columbia, showing that in 1999
appellant did not work on January 7 or 8, left early on May
14, and did not work on May 15.
Appellant called a single character witness in defense.
Gregory Archer, a retired Metropolitan Police Department
(‘‘MPD’’) homicide detective, who was then working as a
background investigator for the MPD, testified that he had
conducted an investigation of appellant’s reputation in the
community as a result of appellant’s application for a position
as a MPD police officer. In the course of his investigation
Archer had spoken to 14–15 members of the community and
all regarded appellant as ‘‘law abiding.’’ Archer also testified
that appellant had a reputation among other police officers as
being ‘‘an outstanding young man’’ and ‘‘a law abiding young
man.’’ Further, Archer, who had known appellant since he
4
was five years old and knew that appellant’s father was a
sergeant in the MPD homicide branch, testified: ‘‘In my
opinion, he is a law abiding young man, honest, responsi-
bleTTTT’’
The jury found appellant guilty of conspiracy to illegally
purchase and unlawfully transport firearms and of unlawful
transportation and aiding and abetting the transportation of
firearms on May 15, 1999, and not guilty of charges relating
to January 8, 1999. The district court sentenced appellant to
22 months’ incarceration, three years of supervised release,
and 100 hours of community service.
II.
On appeal, appellant’s sole claim of error by the district
court is its denial of his request to present character evidence
regarding his reputation for truthfulness and honesty in the
community. Appellant’s defense counsel had argued to the
district court that the government had put appellant’s reputa-
tion for law-abidingness, truthfulness, and honesty at issue by
charging him with participating in a conspiracy where appel-
lant aided in the preparation of false statements filed with
licensed gun dealers. Trial and appellate counsel maintain
that character testimony regarding these separate character
traits was admissible, notwithstanding appellant’s decision not
to testify, because the charges were analogous to fraud cases.
The district court ruled that while character evidence regard-
ing appellant’s reputation for law abidingness would be ad-
missible on all counts, character evidence regarding appel-
lant’s truthfulness and honesty would be inappropriate unless
appellant testified.
This court reviews a district court’s exclusion of character
evidence for abuse of discretion. See United States v. Bailey,
319 F.3d 514, 517 (D.C. Cir. 2003); United States v. Washing-
ton, 106 F.3d 983, 999 (D.C. Cir. 1997); see also Michelson v.
United States, 335 U.S. 469, 480 (1948). If the evidence was
improperly excluded, this court must then determine whether
the error was harmless. See Bailey, 319 F.3d at 519; Wash-
ington, 106 F.3d at 1000. Where a non-constitutional trial
error is involved, as here, the question is whether the error
5
‘‘had substantial and injurious effect or influence in determin-
ing the jury’s verdict.’’ Kotteakos, 328 U.S. at 776; see also
Washington, 106 F.3d at 1000. To the extent that this court
applied the Chapman standard in United States v. Lechoco,
542 F.2d 84, 88 (D.C. Cir. 1976), it was error. See, e.g.,
O’Neal v. McAninch, 513 U.S. 432, 437–38 (1995). As noted
in In re Sealed Case No. 97–3112, 181 F.3d 128, 143–44 (D.C.
Cir. 1999) (en banc) (Edwards, C.J. & Tatel, J., concurring)
(discussing Irons v. Diamond, 670 F.2d 265, 268 n.11 (D.C.
Cir. 1981)), a three-judge ‘‘panel may always TTT determine
TTT that a prior holding has been superseded, and hence is no
longer valid as precedent’’ without resorting to en banc
endorsement, id. at 143 (quoting Policy Statement on En
Banc Endorsement of Panel Decisions 2–3 (Jan. 17, 1996)).
A.
Under Fed. R. Evid. 404(a), character evidence is inadmis-
sible for the purpose of proving action in conformity there-
with, except ‘‘[e]vidence of a pertinent trait of character
offered by an accusedTTTT’’ Fed. R. Evid. 404(a)(1). Courts
have held that the general character trait of law-abidingness
is pertinent to almost all criminal offenses. See United States
v. Daily, 921 F.2d 994, 1010 (10th Cir. 1990); United States v.
Hewitt, 634 F.2d 277, 279 (5th Cir. 1981); see also JOHN W.
STRONG, MCCORMICK ON EVIDENCE § 191, at 674 (5th ed. 1999).
Evidence on the specific character traits for truthfulness and
honesty has been held admissible both when the defendant
testifies at trial and the prosecution attacks the defendant’s
credibility, and when the defendant is charged with an offense
in which fraud or falsehood is one of its statutory elements.
See Edgington v. United States, 164 U.S. 361, 363–64 (1896);
Lechoco, 542 F.2d at 88; Hewitt, 634 F.2d at 279; United
States v. Darland, 626 F.2d 1235, 1237 (5th Cir. 1980);
Carnley v. United States, 274 F.2d 68, 69 (5th Cir. 1960); see
generally Gordon v. United States, 383 F.2d 936, 940 (D.C.
Cir. 1967). Edgington, 164 U.S. 361, is an example of the
latter situation. In that case, the defendant was charged with
making a false deposition in aid of a fraudulent pension claim.
Id. at 363. The Court rejected the argument that character
6
evidence of the defendant’s reputation for truth and veracity
was admissible only if the defendant testified, and held that
because the crime charged was a species of the crimen falsi,
i.e., a crime involving some element of dishonesty or false
statement, BLACK’S LAW DICTIONARY 379 (7th ed. 1999), such
evidence was ‘‘material and competent’’ to show a general
character inconsistent with the crime, id. at 363–64, which,
‘‘when considered with other evidence in the case, may gener-
ate a reasonable doubt,’’ id. at 366.
The language of Rule 404(a)(1) extends beyond cases in
which the defendant’s reputation for truthfulness and honesty
is relevant because the defendant testifies or is charged with
a crimen falsi. See Lechoco, 542 F.2d at 88. Illustrative of
the flexible application of the rule, the court held in Lechoco
that testimony regarding the defendant’s reputation for truth-
fulness may be ‘‘particularly pertinent’’ even where a defen-
dant, who is charged with an offense in which his honesty or
truthfulness is not a statutory element, does not testify. Id.
There, the defendant had presented an insanity defense to
the charge of kidnaping. During cross examination of the
defendant’s medical experts, the prosecutor brought out that
their opinions were premised on the truthfulness of the
defendant’s statements during psychiatric interviews. Id. at
86–87. The court held that by raising the issue of the
defendant’s credibility, the prosecutor had ‘‘opened the door
for the defendant to introduce testimony as to his reputation
for truth and veracity.’’ Id. at 88.
Appellant contends that he was charged with an offense of
crimen falsi because the indictment alleged that he partici-
pated in a conspiracy where he aided his co-conspirators in
falsifying documents. While no circuit has held that truthful-
ness and honesty are relevant to conspiracy to illegally pur-
chase firearms, we agree with the parties that the circum-
stances here are analogous to cases involving fraud or false
statements in which courts have held that such character
evidence is admissible. Edgington, 164 U.S. at 363–64; see
also Daily, 921 F.2d at 1011; Hewitt, 634 F.2d at 279. The
charges in appellant’s indictment are premised on the filing of
false statements. The indictment states that the object of the
7
conspiracy was ‘‘to acquire firearms and money by obtaining,
through straw purchasers TTT firearms in the State of Geor-
gia.’’ In describing the ways, manner, and means of the
conspiracy, the indictment alleged that:
It was part of the conspiracy that co-conspirators
who were lawfully eligible to purchase firearms in
the State of Georgia, would knowingly make false
and fictitious written statements to licensed federal
firearms dealers, to the effect that they were the
actual buyers of the firearms, when in truth and
fact, they purchased the firearms for other co-
conspirators who could not lawfully purchase the
firearmsTTTT
Among the overt acts listed in the indictment are events
occurring on May 15, 1999, when two unindicted co-
conspirators each allegedly executed a ATF Form 4473, ‘‘sig-
nifying that they were the actual buyers of the firearms TTT
whereas in truth and fact, they purchased the firearms for
[appellant] and another co-conspirator not indicated here-
inTTTT’’
Although the indictment did not charge appellant with
making the false statements himself, it charged him with
participating in a conspiracy in which he ‘‘recruited’’ eligible
firearm purchasers to ‘‘knowingly make false and fictitious
statements’’ in order to purchase firearms that he had paid
for and selected. The government’s evidence at trial, particu-
larly Agent Bisbee’s expert testimony, was aimed at demon-
strating that appellant and Bing had enlisted Jackson and
Jones to falsify the ATF forms. Because the indictment and
the government’s proof of the conspiracy made appellant’s
truthfulness and honesty a part of the charged conspiracy,
and thereby invited appellant to introduce character evidence
for those traits, see Edgington, 164 U.S. at 363–64, we hold
that the district court erred in ruling that appellant’s charac-
ter evidence regarding his truthfulness and honesty was
inadmissible on the conspiracy count. Cf. United States v.
Bayless, 940 F.2d 300, 304 (8th Cir. 1991). Whether the
district court also erred in excluding character evidence re-
8
garding appellant’s honesty and truthfulness with respect to
the unlawful transportation count, 18 U.S.C. §§ 922(a)(3),
924(a)(1)(D), 2, is a far closer question, as appellant’s counsel
acknowledged during oral argument. Although appellant
contends that honesty and truthfulness are pertinent traits
because ‘‘willfulness’’ is an element of the crime, 18 U.S.C.
§ 924(a)(1)(D), it is unclear, as defense counsel acknowledged
in the district court, that the offense involves any element of
fraud or false statement, and appellant points to no other
ground for admission. The court need not decide this ques-
tion, however, for any error in exclusion of the evidence was
harmless.
B.
The nature of any prejudice to appellant as a result of the
exclusion of character evidence on his truthfulness and hones-
ty arises both from the government’s expert evidence on
‘‘straw purchases’’ in support of the allegations in the indict-
ment that appellant and Bing hired Jackson and Jones to
make false statements, and from the closing argument in
which the prosecutor referred to the co-conspirators’ agree-
ment to have others lie on the ATF forms. As appellant
maintains, ‘‘[t]o believe the government’s witnesses, the jury
necessarily had to believe that appellant was the type of
person who would knowingly connive with others to purchase
guns through the use of false statements and certifications.’’
Appellant’s Brief at 26. Consistent with the district court’s
evidentiary ruling, appellant was unable to present evidence
of these character traits or to argue their relevancy during
his closing argument to the jury. Nevertheless, we can
conclude with ‘‘fair assurance,’’ Kotteakos, 328 U.S. at 765,
that the exclusion of character evidence of appellant’s reputa-
tion for truthfulness and honesty was harmless because it did
not have a ‘‘substantial and injurious effect or influence in
determining the jury’s verdict,’’ id. at 776, and therefore did
not substantially affect appellant’s substantial rights, id. at
764–65.
First, the excluded character evidence was cumulative of
other good character evidence heard by the jury. See Wash-
9
ington, 106 F.3d at 1000. Appellant presented forceful char-
acter evidence to the jury on his reputation in the community.
Archer testified as a trained criminal investigator, who had
conducted an investigation of appellant’s reputation for being
law-abiding as part of his professional responsibilities and
spoken with a number of members of the community and with
MPD police officers about appellant’s reputation. Archer’s
testimony was not limited to the community’s view of appel-
lant’s reputation for law-abidingness. Rather, Archer testi-
fied that appellant had a reputation, particularly among other
police officers, for not only being ‘‘a law abiding young man,’’
but also being ‘‘an outstanding young man,’’ which, to the
extent that the latter phrase reflects a distinct character trait,
is broader than the general character trait for law-
abidingness. In addition, Archer, who testified both as an
experienced police officer and a person who had known
appellant for many years, stated that he personally believed
appellant to be ‘‘a law abiding young man, honest, responsi-
bleTTTT’’ The breadth of Archer’s testimony thus challenged
any assumption arising from the government’s evidence that
appellant’s association with his co-conspirators and govern-
ment co-operators proved that he was the type of person who
would be criminally engaged. Indeed, the jury heard Arch-
er’s opinion that appellant was honest, and it was instructed
that the evidence of appellant’s ‘‘good reputation in the
community for being TTT law abiding TTT may indicate TTT
that it is unlikely that a law-abiding person would commit the
crime charged.’’ Defense counsel’s proffer to the district
court of the testimony of the character witnesses that he
wished to present did not indicate that Archer or the other
witness would have covered new ground. Thus, further
character testimony on appellant’s reputation for truthfulness
and honesty would have been cumulative.
Second, the government presented strong evidence of ap-
pellant’s guilt. See Washington, 106 F.3d at 1000. Four
witnesses identified appellant as accompanying Bing on the
May 15, 1999 gun buying trip. Although the government’s
identification evidence consisted of the testimony of co-
conspirators and government co-operators, their testimony
10
concerning appellant’s involvement in the May 15, 1999 events
was substantially similar. Jackson, Jones, and Anderson did
not know appellant before he traveled with Bing to Atlanta
and separately picked him out of a photo array. Jackson and
Jones also gave detailed descriptions of how Bing and appel-
lant selected and paid for several firearms. Anderson, who
was not criminally charged with regard to this ATF investiga-
tion, corroborated much of the co-conspirator testimony. The
jury was aware of the status of the government witnesses and
their self-interest and was instructed to use caution and care
in scrutinizing the testimony of accomplices. In addition,
appellant’s employment records were corroborative of evi-
dence that he was in Atlanta, Georgia on May 15, 1999.
Contrary to an argument appellant makes in a single
footnote, the prosecutor did not commit plain error during
closing argument. See United States v. Olano, 507 U.S. 725,
731–37 (1993). The prosecutor did not suggest in closing or
rebuttal argument that appellant was guilty because of such
character traits as untruthfulness or dishonesty. Even as-
suming appellant’s claim about the prosecutor’s rebuttal clos-
ing argument, see Appellant’s Brief at 25 n.15, is properly
before the court, see Fed. R. App. P. 28(a)(9); Terry v. Reno,
101 F.3d 1412, 1415 (D.C. Cir. 1996), the prosecutor could
properly respond in rebuttal to defense counsel’s emphasis in
closing argument on appellant’s relationship to law enforce-
ment, cf. United States v. Young, 470 U.S. 1, 14–20 (1985).
Accordingly, because the additional evidence of appellant’s
reputation for truthfulness and honesty would have been
cumulative and unlikely to overcome the strong evidence of
appellant’s complicity in the May 15, 1999 events, we affirm
the judgment of conviction.