United States v. Whitmore

Gerald Whitmore (defendant) was charged with one count of unlawful possession of a firearm and ammunition by a felon and one count of possession of a controlled substance. The charges were based on a November 1, 2001 police chase. Officer Efrain Soto said that during the chase, he saw Whitmore throw a gun toward a building prior to being apprehended. When another officer arrived to assist Soto, the officer found a gun in the window well of the building toward which Soto said he saw Whitmore throw the gun. The officers also found a small bag of cocaine base in Whitmore's jacket pocket. Whitmore's defense at trial was that Soto had fabricated the story about the gun and that Soto had planted the gun in the window well. In an effort to attack Soto's credibility, Whitmore attempted to call Jason Cherkis, Bruce Cooper, and Kennith Edmonds as character witnesses to testify to Soto’s character for untruthfulness. Cherkis was a journalist who had written a newspaper article about Soto and had interviewed people who stated that Soto was a liar. The district court excluded Cherkis’s reputation testimony because Cherkis was not personally acquainted with Soto. Similarly, Cooper was a criminal-defense attorney who planned to testify that other defense attorneys and the general court community thought that Soto was a liar. The district court excluded Cooper’s reputation testimony because Cooper did not know Soto’s reputation within the entire court community and did not live in Soto’s community. Cooper also planned to testify to his personal opinion that Soto was a liar, based on an unsupported claim that Soto had previously lied as a witness against Cooper’s clients. The district court excluded Cooper’s opinion testimony under Federal Rule of Evidence (FRE) 403, because the testimony was biased and its probative value was substantially outweighed by its danger of undue prejudice. Finally, Edmonds lived in a neighborhood that Soto had patrolled as a police officer until approximately five years earlier. During that time, Edmonds saw Soto regularly. Edmonds claimed that Soto had wrongfully arrested him approximately six years prior to Whitmore's trial. The district court excluded Edmonds’s opinion and reputation testimony based on FRE 403. Whitmore also attempted to impeach Soto's credibility by cross-examining him about (1) a court's finding that Soto had lied during his testimony in a previous criminal trial, (2) the suspension of Soto's driver's license, and (3) Soto's failure to pay child support. The district court did not allow Whitmore to cross-examine Soto on any of these topics. Specifically, the district court held that the previous judge's finding that Soto had lied was not probative of Soto's character for truthfulness because it was only an allegation of misconduct, and the evidence was unduly prejudicial under FRE 403. The district court prohibited Whitmore from cross-examining Soto on the other two topics because Whitmore's questioning was based on a state driving-record document listing the suspension of Soto's driver's license as a result of his failure to pay child support, and the court found that the document was hearsay. A jury convicted Whitmore on both counts, and Whitmore appealed.