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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 17, 2003 Decided March 5, 2004
No. 03-3022
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)
A. J. Kramer, Federal Public Defender, argued the cause
for the appellant. Erica J. Hashimoto, Assistant Federal
Public Defender, entered an appearance.
Jessie K. Liu, Assistant United States Attorney, argued
the cause for the appellee. Roscoe C. Howard, Jr., United
States Attorney, and John R. Fisher and Thomas J. Tourish,
Jr., Assistant United States Attorneys, were on brief.
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
Before: HENDERSON and GARLAND, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.*
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: 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 prevent-
ing him at trial from attacking the credibility of the arresting
officer. Whitmore also claims that the court erred at sen-
tencing 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 dis-
trict 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 court deprived
Whitmore of any realistic opportunity to challenge the credi-
bility of the only witness who testified that Whitmore commit-
ted 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
* Judge Silberman was a member of the panel at the time of oral
argument but did not participate in the decision.
3
November 1, 2001, Officer Bladden Russell of the District of
Columbia Metropolitan Police Department (MPD), while pa-
trolling the Fort Davis neighborhood in Southeast Washing-
ton, 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 apart-
ment 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 ammu-
nition, 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,1 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
1Although Officer Russell testified that Whitmore held his right
hand close to his right side as he fled, Russell did not see him throw
anything.
4
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 repu-
tation for untruthfulness within what he called the ‘‘court
community’’ and Cooper’s own opinion that Soto was untruth-
ful. 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 neighbor-
hood. 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 Coo-
per’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
5
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 Ed-
monds 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 proba-
tive value of Edmonds’s evidence was outweighed by unfair
prejudice, including the government’s resulting need to exam-
ine 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 subsequent-
ly 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)).
6
The government moved in limine to exclude cross-
examination 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 prejudi-
cial. 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 disa-
greed 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 cross-
examination 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 inclina-
tion 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 district
court prohibited cross-examination on both subjects, conclud-
ing the document Whitmore intended to cross-examine from
was hearsay and observing that it ‘‘d[id]n’t understand’’ Whit-
7
more’s ‘‘bias argument.’’ Oct. 31, 2002 Trial Tr. (Tr.) at 232–
234.
In light of the trial court’s rulings, Whitmore presented no
evidence in his defense and was limited to cross-examining
the government witnesses about inconsistencies in their trial
testimony. The jury convicted Whitmore on both counts. At
sentencing the court concluded that Whitmore’s prior Mary-
land conviction for aggravated assault constituted a ‘‘crime of
violence’’ as defined in U.S.S.G. § 4B1.2(a) and therefore
calculated Whitmore’s base offense level pursuant to U.S.S.G.
§ 2K2.1(a)(2). It 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.
II. DISCUSSION
The Sixth Amendment guarantees a defendant the right to
present a defense by calling witnesses on his own behalf and
by cross-examining the witnesses against him. See Taylor v.
Illinois, 484 U.S. 400, 409 (1988); Delaware v. Van Arsdall,
475 U.S. 675, 678–79 (1986); Chambers v. Mississippi, 410
U.S. 284, 294–95 (1973); United States v. Wilson, 160 F.3d
732, 742 (D.C. Cir. 1998); Graham, 83 F.3d at 1474. The
district court nonetheless has considerable discretion to place
reasonable limits on a criminal defendant’s presentation of
evidence and cross-examination of government witnesses.
Wilson, 160 F.3d at 742; Graham, 83 F.3d at 1474. It must
‘‘be cautious,’’ however, ‘‘[p]articularly where a party is seek-
ing to impeach a witness whose credibility could have an
important influence on the outcome of the trial.’’ Harbor Ins.
Co. v. Schnabel Found. Co., 946 F.2d 930, 935 (D.C. Cir.
1991).
Whitmore makes two challenges: one related to the exclu-
sion of his proposed character witnesses under Fed. R. Evid.
608(a) and the other to the exclusion of his proposed cross-
examination of Soto under Fed. R. Evid. 608(b). We review
the district court’s evidentiary rulings for abuse of discretion,
see Wilson, 160 F.3d at 742 (‘‘review[ing] the district court’s
8
decision to deny admission of evidence for abuse of discre-
tion’’); United States v. White, 116 F.3d 903, 919 (D.C. Cir.
1997) (‘‘[r]eviewing the district court’s limits on cross-
examination for abuse of discretion’’), and address his claims
separately.
1. Character Witnesses
Fed. R. Evid. 608(a) allows a party to attack the credibility
of a witness through reputation and opinion evidence of his
character for truthfulness.2 Whitmore complains that the
district court erroneously excluded the testimony of three
character witnesses he sought to call to attack Soto’s credibil-
ity. As noted earlier, they included: (1) Cherkis, a reporter
who had written a newspaper article involving Soto in 2000;
(2) Cooper, a local defense counsel who had represented
defendants against whom Soto had testified; and (3) Ed-
monds, an acquaintance who had lived in the neighborhood
where Soto worked. Whitmore wanted Cherkis to provide
reputation evidence and Cooper and Edmonds both reputa-
tion and opinion evidence.
In order to offer reputation evidence under Fed. R. Evid.
608(a), a party must establish that the character witness is
qualified by having an ‘‘acquaintance with [the witness],’’ his
‘‘community,’’ and ‘‘the circles in which he has moved, as to
speak with authority of the terms in which generally [the
witness] is regarded.’’ Michelson v. United States, 335 U.S.
469, 478 (1948); compare United States v. Bedonie, 913 F.2d
782, 802 (10th Cir. 1990) (high school principal qualified to
give reputation testimony because he lived in community,
regularly used local facilities and personally knew and had
frequent contact with witnesses), with United States v. Ruiz–
2 Fed. R. Evid. 608(a) provides:
The credibility of a witness may be attacked or supported by
evidence in the form of opinion or reputation, but subject to
these limitations: (1) the evidence may refer only to character
for truthfulness or untruthfulness, and (2) evidence of truthful
character is admissible only after the character of the witness
for truthfulness has been attacked by opinion or reputation
evidence or otherwise.
9
Castro, 92 F.3d 1519, 1530 (10th Cir. 1996) (‘‘[d]efendants did
not establish requisite TTT foundation in order to offer reputa-
tion evidence’’ because sole connection was that character
witnesses and principal witness were all from Mexico). With
regard to Cherkis, Whitmore relied on the interviews that
Cherkis had conducted for the 2000 article and on the holding
in Wilson v. City of Chicago, 6 F.3d 1233, 1239 (7th Cir.
1993), in which the Seventh Circuit reversed a district court’s
exclusion of a reporter’s reputation testimony. The reporter
in Wilson, however, had personally interviewed the principal
witness while Cherkis had never met Soto. Id., see Ruiz–
Castro, 92 F.3d at 1530 (character witnesses not qualified
because not ‘‘personally familiar with [the principal witness]
or his alleged reputation’’). Furthermore, neither Cherkis
nor Edmonds had had direct contact with Soto or his commu-
nity for some time. The district court found the proposed
testimony of both Cherkis and Edmonds as to Soto’s alleged
reputation for truthfulness ‘‘too remote’’ in time from the time
of trial. Appellee’s App. at 27, 351; see United States v.
Watson, 669 F.2d 1374, 1381 (11th Cir. 1982) (reputation
witness not qualified where he knew witness only ‘‘for a short
period of time’’ and his ‘‘testimony was to a reputation that
existed at a time remote from both the time of [the events in
controversy] and the time of trial’’); United States v. Lewis,
482 F.2d 632, 640 n.44 (D.C. Cir. 1973) (witness’s ‘‘reputation
for testimonial honesty TTT is to be established by evidence of
his community reputation at the time of trial and during a
period not remote thereto’’). Finally, with regard to Cooper’s
testimony – and leaving aside the troublesome issue whether
the ‘‘court community’’ represents a cognizable community for
the purpose of a law enforcement officer’s reputation – the
district court found the foundation for his testimony weak
because it relied on Cooper’s conversations with only a few
other criminal defense counsel, a subset of the proposed
‘‘community.’’ See Williams v. United States, 168 U.S. 382,
397 (1897) (reputation evidence inadmissible because founda-
tion was few individuals in one building and Court noted
community cannot be so narrowly drawn as to ignore ‘‘gener-
al reputation in the community’’); United States v. Nedza,
10
880 F.2d 896, 904 (7th Cir. 1989) (rejecting reputation testi-
mony because only foundation was two former high school
classmates’ conversations); see also 28 Charles Alan Wright
& Victor James Gold, Federal Practice and Procedure § 6114,
at 63 (1993) (‘‘The community must not be so parochial that
there is a risk that each member of that community forms
opinions as to character based on the same set of biases.’’).
We conclude that the district court did not abuse its discre-
tion in excluding the reputation evidence of these witnesses.3
While recognizing that the foundational requirement for
opinion evidence regarding a witness’s character for truthful-
ness is less stringent than that for reputation evidence, see
Watson, 669 F.2d at 1382, the district court nonetheless
rejected both Cooper’s and Edmonds’s proposed opinion evi-
dence. It concluded that both opinions lacked sufficiently
supportive factual information to be credible and thus would
be unfairly prejudicial under Fed. R. Evid. 403. Appellee’s
App. at 359–361. Compare United States v. McMurray, 20
F.3d 831, 834 (8th Cir. 1994) (finding adequate foundation for
opinion testimony because witness convinced character wit-
ness to open credit card account ostensibly to buy Christmas
presents but instead incurred sizable travel expenses charac-
ter witness had to pay), with United States v. Cortez, 935
F.2d 135, 139–40 (8th Cir. 1991) (rejecting opinion testimony
by police officers because officers had only minimal, post-
3 The district court also excluded Cherkis’s and Cooper’s testimo-
ny because neither lived in Soto’s community. Courts have rejected
the notion, however, that reputation testimony is confined to the
witness’s residential community or that the character witness must
physically reside in that community. See, e.g., Wilson, 6 F.3d at
1239 (admitting reporter’s testimony about witness’s reputation
among people with whom he had worked and among his family
because ‘‘a community doesn’t have to be stable in order to qualify
under the rule’’); United States v. Mandel, 591 F.2d 1347, 1370 (4th
Cir. 1979) (noting that expansion of community to include witness’s
professional environment reflects ‘‘the realities of our modern,
mobile, impersonal society’’); United States v. Lewin, 467 F.2d
1132, 1140 (7th Cir. 1972) (rejecting notion that ‘‘an identity of
residence is essential’’ for reputation testimony).
11
arrest contacts with witness and their testimony ‘‘merely
expresses their belief in the story he told them’’). The
foundation for Cooper’s opinion that Soto was untruthful was
limited to his observation that Soto had testified falsely
against his clients; the facts underlying Edmonds’s opinion
did not provide a reasonable basis from which the jury could
conclude that Soto was even directly involved in the events,
much less indicate that he was untruthful about them. Unit-
ed States v. Dotson, 799 F.2d 189, 193 (5th Cir. 1986) (‘‘An
opinion TTT without the underlying facts, may be excluded if
it amounts to no more than a conclusory observationTTTT
Unless that basis or source demonstrates that the opinion is
rationally based on the perception of the witness and would
be helpful to the jury in determining the fact of credibility, it
should not become a part of the proof in the case.’’ (emphasis
added)).
Whitmore contends that the foundational defects could
have been highlighted by the government in cross-examining
his character witnesses but were not severe enough to ex-
clude the evidence altogether. See Watson, 669 F.2d at 1382.
The foundation required by Fed. R. Evid. 608(a), however, is
designed to keep unreliable evidence from being heard by the
jury at all. See, e.g., Fed. R. Evid. 701 (opinion must be
‘‘rationally based on the perception of the witness’’ and ‘‘help-
ful to a clear understanding of the witness’ testimony or the
determination of a fact in issue’’); United States v. Williams,
212 F.3d 1305, 1309–10 & n.6 (D.C. Cir. 2000); Giant Food
Stores, Inc. v. Fine, 269 F.2d 542, 543 (D.C. Cir. 1959) (per
curiam). The district court did not abuse its discretion in
excluding this evidence under Fed. R. Evid. 608 – the founda-
tional defects were serious – and Fed. R. Evid. 403, on the
ground that its value would have been substantially out-
weighed by the unfair prejudice to the government and by
needlessly occupying the time of the jury and the court.
2. Cross–Examination of Soto
Fed. R. Evid. 608(b) allows a party to attack the credibility
of a witness by cross-examining him on specific instances of
12
past conduct.4 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. See
Fed. R. Evid. 608(b). It may not, however, be proven by
extrinsic evidence. Id.; United States v. Morrison, 98 F.3d
619, 628 (D.C. Cir. 1996); see also United States v. Bynum, 3
F.3d 769, 772 (4th Cir. 1993) (noting that under Fed. R. Evid.
608(b) ‘‘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 that ‘‘[t]he purpose of this rule is to
prohibit things from getting too far afield – to prevent the
proverbial trial within a trial’’).
Whitmore contends that the district court erroneously pre-
vented him from cross-examining Soto under Fed. R. Evid.
608(b) regarding three instances of past misconduct: (1) his
testimony before the Superior Court judge in 1999; (2) the
1998 suspension of Soto’s Maryland driver’s license and his
failure to report the suspension to his supervisors; and (3)
Soto’s failure to make child-support payments.5 The district
court prohibited cross-examination as to the first instance
under Fed. R. Evid. 403; with regard to Soto’s failure to
4 Fed. R. Evid. 608(b) provides:
Specific instances of the conduct of a witness, for the purpose
of attacking or supporting the witness’[s]character for truthful-
ness, other than conviction of crime as provided in rule 609,
may not be proved by extrinsic evidence. They may, however,
in the discretion of the court, if probative of truthfulness or
untruthfulness, be inquired into on cross-examination of the
witness (1) concerning the witness’[s] character for truthfulness
or untruthfulness, or (2) concerning the character for truthful-
ness or untruthfulness of another witness as to which character
the witness being cross-examined has testified.
5 Whitmore also asserts that cross-examination on these subjects
was permissible under Fed. R. Evid. 404(b) to show that Soto had a
motive to lie in Whitmore’s trial to curry favor with (or avoid future
investigation by) his MPD supervisors. Because we conclude that
reversal is required for the reasons discussed in the text, we need
not address this assertion.
13
report his suspended license and his failure to make child
support payments, the court concluded that the document on
which Whitmore relied to pursue the questioning was itself
unreliable hearsay. We disagree.6
Under Fed. R. Evid. 403, a court may exclude relevant
evidence ‘‘if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evi-
dence.’’ ‘‘Rule 403 tilts,’’ however, ‘‘as do the rules as a
whole, toward the admission of evidence in close cases;’’
when ‘‘performing the balancing test required under Rule
403, TTT the balance should be generally struck in favor of
admission.’’ United States v. Cassell, 292 F.3d 788, 795 (D.C.
Cir. 2003) (internal quotations and citations omitted). We
nonetheless recognize that the district court is in the best
position to conduct the balancing test and therefore review a
Fed. R. Evid. 403 ruling ‘‘only for grave abuse.’’ Id. (internal
quotations and citations omitted).
Here the district court first determined that the probative
value of any cross-examination regarding Soto’s testimony
before the Superior Court judge would be slight because it
involved an unrelated and dated matter and fell short of a
perjury conviction. It then concluded, relying in part on
United States v. Lopez, 944 F.2d 33, 38 (1st Cir. 1991) (no
abuse of discretion in prohibiting cross-examination about
prior judicial finding), that cross-examination on the subject
presented a ‘‘grave risk that the jury might abdicate’’ its role
in weighing Soto’s testimony and that both the cross-
examination and the government’s inevitable rehabilitation of
Soto’s testimony would ‘‘divert the jury from the facts in this
case and from the assessment that they need to make in this
case.’’ Appellee’s App. at 185–86.
6 The district court did not conclude, and the government does
not argue, that the proposed cross-examination would be impermis-
sible under Fed. R. Evid. 608. Rather, the government argues only
that it was within the district court’s discretion to exclude this line
of cross-examination.
14
For his part, Whitmore contends that the proposed cross-
examination was strongly probative of Soto’s character for
untruthfulness and that, given the critical nature of Soto’s
evidence against Whitmore, the district court should have
allowed it. We agree. Nothing could be more probative of a
witness’s character for untruthfulness than evidence that the
witness has previously lied under oath. Indeed, as the Sec-
ond Circuit observed – in a remarkably similar case (before
the enactment of Fed. R. Evid. 608(b)) in which a party
sought to cross-examine a ‘‘key witness’’ regarding a finding
by another court that the witness had ‘‘ ‘intentionally g[iven]
false testimony’ ’’: ‘‘the rule seems to be well settled that
although the opponent is not permitted to adduce extrinsic
evidence that a witness lied on a previous occasion, he may
nonetheless ask questions to that end.’’ Walker v. Firestone
Tire & Rubber Co., 412 F.2d 60, 63–64 (2d Cir. 1969); see id.
(‘‘While a witness’ testimony regarding collateral matters –
here an unrelated trial – may not be refuted by calling other
witnesses or by production of extrinsic evidence, there is
nothing improper in asking questions relating to extrinsic
matters in the hope of undermining the witness’[s] credibili-
ty.’’); see also United States v. Terry, 702 F.2d 299, 316 (2d
Cir. 1983) (‘‘Proof that a judge TTT before whom [the witness]
had testified as an expert had found that [the witness] had
‘guessed under oath’ was probative of the weight to be
accorded to his testimony.’’); United States v. Whitehead, 618
F.2d 523, 529 (4th Cir. 1980) (approving cross-examination of
lawyer-defendant under Fed. R. Evid. 608(b) regarding both
conduct underlying suspension of his law license and suspen-
sion itself). But see United States v. Cruz, 894 F.2d 41, 43
(2d Cir. 1990) (excluding cross-examination regarding earlier
judicial finding in unrelated case that witness lacked credibili-
ty because of limited probative value). Furthermore, as both
parties note, we have previously observed – in the context of
assessing the government’s Brady violation – that cross-
examination of a witness about past false statements he made
under oath would be proper under Fed. R. Evid. 608(b) as an
instance of the witness’s conduct probative of untruthfulness.
United States v. Cuffie, 80 F.3d 514, 517 (D.C. Cir. 1996).
15
Relying on our holdings in United States v. Morrison, 98
F.3d 619, 628 (D.C. Cir. 1996), and Bowie, 198 F.3d at 911,
the government nevertheless contends that the probative
value of the proposed cross-examination was limited because
the judge’s finding ‘‘more closely resembles a mere complaint
TTT or a ruling that the testimony of opposing witnesses [was]
more credible, whose probative value is hard to know.’’ Ap-
pellee’s Br. at 37 (internal quotations omitted). Hardly. The
government’s attempt to analogize the judge’s simple and
direct statement – ‘‘I think [Officer Soto] lied’’ – to an
unsubstantiated civil complaint, see Morrison, 98 F.3d at 628,
or to a judge’s suppression of evidence because he found
‘‘defense witnesses more credible than’’ the government’s
witness, see Bowie, 198 F.3d at 907, is strained at best.
Furthermore, the government’s suggestion that inquiry under
Fed. R. Evid. 608(b) should be limited to a prior perjury
conviction would make Fed. R. Evid. 609 superfluous. Fed.
R. Evid. 608(b) allows a witness’s credibility to be attacked
based on misconduct that, while not constituting a criminal
conviction, nevertheless tends to show that the witness is
untruthful. See United States v. Bagaric, 706 F.2d 42, 65 (2d
Cir. 1983) (allowing cross-examination of witness regarding
negative credibility determination by another judge under
Fed. R. Evid. 608(b) because ‘‘it is clear that the prior
misconduct need not have created criminal liability or result-
ed in a conviction’’).
Moreover, neither Morrison nor Bowie supports the dis-
trict court’s total rejection of Whitmore’s proposed cross-
examination regarding Soto’s prior testimony, the judge’s
finding and the United States’s Attorney’s Office’s subsequent
investigation of Soto. In Morrison we rejected the defen-
dant’s claim that he was entitled to cross-examine a govern-
ment witness regarding the fact that the latter had been sued
in state court, noting that ‘‘the mere filing of a complaint’’ –
‘‘regardless of whether the allegations in the complaint [were]
true’’ – did not meet Fed. R. Evid. 608(b)’s requirement that
cross-examination be confined to conduct that is ‘‘ ‘probative
of truthfulness or untruthfulness.’ ’’ 98 F.3d at 628 (quoting
Fed. R. Evid. 608(b) (emphasis in original)). We did not
16
address what difference it might have made had the defen-
dant sought to cross-examine the witness about the substance
of the complaint. And in Bowie we reaffirmed – again in the
Brady context – our statement in Cuffie that Fed. R. Evid.
608(b) authorized defense counsel to cross-examine an officer
testifying for the government regarding a prior negative
credibility determination by another judge in another matter.
198 F.3d at 909 (noting ‘‘at a minimum’’ cross-examination of
officer about United States Attorney’s ensuing investigation
permissible).
We also believe the district court erred in excluding the
entire line of cross-examination on the ground that its proba-
tive value was substantially outweighed by the risk that the
jury might blindly follow the prior judge’s lead or be other-
wise distracted from the substance of Whitmore’s trial. The
government relies on the First Circuit’s holding in Lopez and
dicta in Bowie7 to argue the exclusion of any cross-
examination about the judge’s finding. Yet Lopez and the
Bowie dicta stand only for the general proposition that exten-
sive cross-examination regarding the judge’s finding would be
overly prejudicial and neither case involved the cross-
examination of the government’s key witness. Lopez, 944
F.2d at 38; Bowie, 198 F.3d at 910. Furthermore, the Lopez
court substantially qualified its own holding, noting that its
review was ‘‘severely hampered by the absence of an offer of
proof as to the nature of the intended’’ cross-examination and
that its decision was confined to the circumstances before it.
944 F.2d at 38. The district court here could have adequately
guarded against any risk of unfair prejudice or undue delay
7 The Bowie court, again in the context of assessing a Brady
violation involving a prior negative credibility determination by
another judge in another matter, included a hypothetical dialogue
among the court, the prosecutor and defense counsel about the
scope of cross-examination regarding that determination. 198 F.3d
910–11. During the course of that dialogue, the court – relying on
Lopez and Fed. R. Evid. 608(a) – sustained the prosecutor’s objec-
tion to defense counsel’s inquiry into the reasoning behind the
judge’s determination, id. at 910, a far different scenario from
Whitmore’s proposed cross-examination.
17
by limiting cross-examination, Bowie, 198 F.3d at 910, by
giving limiting instructions to the jury and by setting reason-
able parameters on the government’s rehabilitation of Soto.
See United States v. Long, 328 F.3d 655, 662 (D.C. Cir. 2003)
(approving use of limiting instructions instead of exclusion of
evidence under Fed. R. Evid. 403 in light of ‘‘probative
strength’’ of evidence); United States v. Burch, 156 F.3d
1315, 1324 (D.C. Cir. 1998) (approving use of ‘‘careful limiting
instruction’’ to prevent jury from drawing improper conclu-
sion from evidence). Instead, by prohibiting cross-
examination of the only witness who testified to Whitmore’s
unlawful possession of the gun, we believe the district court
abused its discretion.
Turning to the district court’s denial of cross-examination
regarding Soto’s suspended driver’s license and failure to pay
child support, we also find error. The trial court precluded
cross-examination on those matters on the ground that there
was ‘‘no basis’’ for the cross-examination because Whitmore’s
only support for them – the record from the Maryland Motor
Vehicle Administration – was inadmissible hearsay. Tr. 234.
Counsel, however, need only have ‘‘ ‘a reasonable basis for
asking questions on cross-examination which tend to incrimi-
nate or degrade the witness,’ ’’ and ‘‘the general rule in such
situations is that ‘the questioner must be in possession of
some facts which support a genuine belief that the witness
committed the offense or the degrading act to which the
question relates.’ ’’ United States v. Lin, 101 F.3d 760, 768
(D.C. Cir. 1996) (quoting United States v. Sampol, 636 F.2d
621, 658 (D.C. Cir. 1980), and United States v. Fowler, 465
F.2d 664, 666 (D.C. Cir. 1972)). 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. Tr. 234. 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. Id.; see United States v. Brooke, 4
F.3d 1480, 1484 (9th Cir. 1993) (Fed. R. Evid. 608(b) prohibits
extrinsic evidence on cross-examination and thus cross-
18
examiner is ‘‘stuck with whatever response’’ witness gives).
We pass over the fact that this assumption implied that Soto
would intentionally lie under oath. The court lacked a basis
for such an assumption, however, because it failed to conduct
any voir dire. See United States v. Crowley, 318 F.3d 401,
417–18 (2d Cir. 2003) (no abuse of direction in prohibiting
relevant cross-examination under Fed. R. Evid. 608(b) be-
cause district court knew from brief voir dire of witness that
witness would deny allegations). The knowledge that he
could be charged with perjury would encourage Soto to
respond truthfully, even if he thought that Whtimore’s coun-
sel could not impeach him further. Accordingly, in excluding
cross-examination on these matters as well, the district court
abused its discretion.
3. Error Not Harmless
Having determined that the district court erred in denying
Whitmore the opportunity to cross-examine Soto about past
misconduct pursuant to Fed. R. Evid. 608(b) and Fed. R.
Evid. 403, we must determine whether the evidentiary rulings
constituted harmless error. See Fed. R. Crim. P. 52(a) (‘‘Any
error TTT that does not affect substantial rights must be
disregarded.’’). There are two different standards of review
for harmlessness, ‘‘one for non-constitutional errors and one
for errors of constitutional dimension.’’ United States v.
Powell, 334 F.3d 42, 45 (D.C. Cir. 2003). Under both stan-
dards, the burden is on the government to demonstrate that
the error was harmless. See United States v. Olano, 507 U.S.
725, 734 (1993). Whitmore maintains that the standard of
review for constitutional errors – ‘‘harmless if it appears
‘beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained’ ’’ – applies because he
was deprived of his Sixth Amendment right to confront a
witness against him. Powell, 334 F.3d at 45 (quoting Chap-
man v. California, 386 U.S. 18, 24 (1967)). But we need not
decide whether the Sixth Amendment was violated here.
Even evaluating the evidentiary rulings under the less rigor-
ous standard of review for non-constitutional misapplications
of the Federal Rules of Evidence – whether the error ‘‘had a
substantial and injurious effect or influence in determining
19
the jury’s verdict,’’ Kotteakos v. United States, 328 U.S. 750,
776 (1946) – the government has not met its burden of
showing harmless error.
Soto provided the sole and critical eye-witness evidence to
support Whitmore’s firearm conviction. We are hard-pressed
to understand the government’s claim that the proposed
cross-examination would have ‘‘had only marginal evidentiary
value,’’ Appellee’s Br. at 50, and we cannot ignore the poten-
tial impact of such a highly probative attack on Soto’s charac-
ter for truthfulness. Walker, 412 F.2d at 64 (‘‘Since virtually
the whole of plaintiff’s case was based on White’s testimony,’’
court’s decision to ‘‘prohibit[ ] proper impeachment of plain-
tiff’s key witness’’ ‘‘can only be regarded as material and
significant’’ and ‘‘required’’ ‘‘a new trial.’’); see also Cuffie, 80
F.3d at 518 (noting in Brady context ‘‘undisclosed impeach-
ment evidence can be immaterial because of its cumulative
nature only if the witness was already impeached at trial by
the same kind of evidence’’).
But the government argues that the court’s rulings, if
erroneous, were harmless because Soto’s testimony was ‘‘am-
ply corroborated by the other officers involved in the arrest’’
and Whitmore’s ‘‘defense theory was incredible.’’ Appellee’s
Br. at 48–50. The government finds no safe harbor in either
argument. First, the fact that Officer Russell testified that
Whitmore ran when confronted by Russell is of little impor-
tance 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.8 In fact, the only independent piece of
evidence corroborating Soto’s testimony connecting Whitmore
to the gun was Russell’s testimony that Whitmore was hold-
ing 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, im-
8 It had apparently been wrapped in rubber bands to prevent
identification.
20
peaching evidence about the government’s key witness and
reached a similar verdict had it heard the excluded cross-
examination. See United States v. Foster, 982 F.2d 551, 556
(D.C. Cir. 1993) (restricted cross-examination of key govern-
ment witness who identified defendant not harmless where
little corroborating testimony).
Relying on our recent decision in United States v. Powell,
334 F.3d at 46, the government argues that no reasonable
juror could have accepted Whitmore’s theory that Soto ‘‘car-
ried a spare fingerprint-free firearm, which he used to frame
[Whitmore], whom he had no idea why he was chasing, and
claimed to have seen appellant throw the gun rather than
simply to have found it in [Whitmore]’s pocket.’’ Appellee’s
Br. at 49. This case is a far cry from Powell, however, in
which the plausibility of the defendant’s theory was only one
of several factors all weighing in favor of harmless error,
including that the alleged error (admissibility of a witness’s
prior consistent statement) did not cause the defendant ‘‘per-
ceptible prejudice.’’ 334 F.3d at 46. Moreover, in Powell we
noted that to accept the defense theory that the police
planted evidence, the jury would also have had to believe that
the officer brought along ‘‘an extra jacket and gun’’ and was
‘‘waiting for the appearance of a coatless subject upon whom
they might be foisted.’’ 334 F.3d at 46. Here, competing
theories about the case are matters for a jury’s consideration.
III. CONCLUSION
For the foregoing reasons, we conclude the district court
committed reversible error in prohibiting the cross-
examination of Officer Soto as set forth above. The cumula-
tive effect of prohibiting all three proposed lines of cross-
examination was to deprive Whitmore of any genuine oppor-
tunity to challenge the credibility of the only witness who
testified that he possessed the gun in question. We cannot
conclude that the error was harmless. We therefore vacate
the judgment of conviction under 18 U.S.C. § 922(g)(1) (felon
in possession of a firearm) and remand for a new trial on that
charge. Whitmore’s conviction under 21 U.S.C. § 844(a)
21
(simple possession of a controlled substance) remains unaf-
fected. Because Whitmore’s sentencing challenge is predicat-
ed on his firearm conviction, we need not address it.
So ordered.