Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-20-2009

USA v. Gilmore
Precedential or Non-Precedential: Precedential

Docket No. 07-3139




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PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 07-3139


          UNITED STATES OF AMERICA

                            v.

                 WALTER GILMORE
                      a/k/a
                     BUTCH,
                            Appellant


    On Appeal from the United States District Court
             for the District of New Jersey
            District Court No. 06-cr-00848
      District Judge: Honorable Robert B. Kugler


   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                  December 9, 2008

  Before: MCKEE, SMITH, and ROTH, Circuit Judges

           (Opinion Filed: January 20, 2009)

                           1
Roland B. Jarvis, Esq.
1315 Walnut Street
Suite 1326
Philadelphia, PA 19107
       Counsel for Appellant Walter Gilmore

Christopher J. Christie
George S. Leone
John F. Romano
Office of the United States Attorney
970 Broad Street
Newark, NJ 07102
       Counsel for Appellee the United States of America

                 OPINION OF THE COURT

SMITH, Circuit Judge.

        This case presents us with a textbook example of how
trial counsel may properly use past criminal conduct to impeach
a witness’ testimony by contradiction. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. For the
reasons set forth below, we will affirm.

                               I.

       On June 26, 2006, Appellant Walter Gilmore called
Cesar Severino, a suspected drug dealer, and requested that they

                               2
meet in person. After the meeting, Severino contacted Julio
Lebron and asked him to deliver a kilogram of cocaine from
Philadelphia, PA, to Camden, NJ. Lebron agreed. Upon
arriving in Camden, Lebron went to Severino’s house where
Severino tested the cocaine in Lebron’s presence.

        That evening, Gilmore called Severino and told him to
“bring 2 99 cent[] sodas and come to my house.” (J.A. 32.)
Severino then left his home carrying the cocaine in a black
plastic grocery bag. After arriving at Gilmore’s house, Severino
walked in with a black plastic grocery bag, stayed for about five
minutes, and left without it.

       When Severino returned home, he paid Lebron $20,000
for the cocaine. Lebron took the money, put it in his wife’s
purse, and began to drive back to Philadelphia. Along the way,
police stopped Lebron’s car for speeding, and recovered
$20,418 from Lebron’s wife’s purse.

       On July 26, 2006, a grand jury indicted Gilmore and
Lebron each on one count of knowingly and intentionally
conspiring to distribute and to possess with intent to distribute
500 grams or more of cocaine in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(B), and 846. Eight days later, agents from
the Drug Enforcement Administration (“DEA”) arrested
Gilmore and searched his home pursuant to valid warrants. The
agents recovered a cell phone, a cell phone bill, and drug
paraphernalia, but no cocaine.

                               3
         Gilmore went to trial on February 14, 2007. During his
trial, the Government offered evidence that Gilmore’s June 26,
2006 phone calls and meetings with Severino concerned the
purchase of cocaine. DEA agents testified that, as part of an
investigation into Severino’s drug-related activities, they
conducted surveillance during the meetings between Gilmore
and Severino, and recorded the various phone conversations
discussing the transaction pursuant to a court-authorized
wiretap. Lebron, who by then was cooperating with the
Government, testified that he purchased the cocaine in
Philadelphia at Severino’s request, brought it to Camden, and
waited in Severino’s house as Severino left with the cocaine and
returned with $20,000. DEA Special Agent Darrin Del Viscio
testified that Gilmore’s reference to “two 99-cent sodas” was
code for a kilogram of cocaine. The Government also pointed
to Gilmore’s phone records, which evidenced numerous phone
calls to and from numbers associated with Severino even after
June 26, 2006.

       Gilmore testified on his own behalf and denied buying
any cocaine from Severino. Gilmore did not deny that he had
multiple meetings and phone conversations with Severino on
June 26, 2006. Instead, Gilmore testified that those phone calls
and meetings concerned a loan that Severino had made to
Gilmore. Gilmore also testified that his request for two 99-cent
sodas was not code for a drug transaction, but that he actually
wanted Severino to bring him two two-liter sodas.



                               4
       During his direct examination, Gilmore and his attorney
had the following exchange:

       Q: After you were indicted in this case, you got a chance
to go through the evidence?

       A: Uh-huh.

      Q: That they had against you to show that you were a
drug dealer, correct?

       A: Yes.

       Q: And we went through that evidence, didn’t we?

       A: Yes, we did.

      Q: And you see any evidence in this case that you’re a
drug dealer, sir?

       A: No, I didn’t sell no drugs. I never did.

(J.A. 743–44) (emphasis added).

      Before beginning its cross-examination, the Government
advised the District Court that it intended to ask Gilmore about




                               5
two prior felony drug distribution convictions 1 in order to
contradict his sworn statement that he never sold drugs.
Gilmore objected. The District Court overruled the objection,
stating that it was “going to permit the government to cross
examine [Gilmore] on that conviction, to contradict his
statement that he’s never sold drugs.” (J.A. 745.) The District
Court, however, would not allow the Government to offer the
certified judgments into evidence unless Gilmore denied the
convictions. The District Court also informed the parties that it
would issue a limiting instruction to the jury to use the
convictions only for credibility purposes and not as evidence of
guilt.

       Pursuant to the District Court’s ruling, the Government
cross-examined Gilmore about his prior drug convictions:

       Q: Mr. Gilmore, you testified on direct that you never
sold drugs, correct?

       A: Yes, I did.




       1
       On March 12, 1992, Gilmore pleaded guilty to 1)
possession with intent to distribute controlled dangerous
substances, and 2) possession of controlled dangerous
substances with intent to distribute within 1,000 feet of a school.
He was paroled on July 5, 1995, and discharged from parole on
March 3, 1998.

                                6
        Q: Isn’t it a fact, Mr. Gilmore, that you were convicted
here in the Superior Court of Camden County on May 22nd,
1992 of possession with intent to distribute [controlled
dangerous substances]?          And possession of [controlled
dangerous substances] with intent to distribute within a thousand
feet of a school?

       A: That was a long time ago.

       Q: But you were convicted of selling drugs?

      A: Yes, I was, a long time ago, and I changed my life
around when I got out.

(J.A. 788.) The District Court provided a limiting instruction to
the jury following this testimony, and repeated that instruction
in its final charge. The Government did not offer any additional
proof of the convictions into evidence.

       On February 22, 2007, the jury found Gilmore guilty of
conspiring to distribute and to possess with the intent to
distribute 500 grams or more of cocaine. Before Gilmore’s
sentencing, the Government requested a two-level enhancement
for obstruction of justice pursuant to Sentencing Guideline §
3C1.1 because of Gilmore’s allegedly perjurious testimony,
which included his denial of any involvement in any drug
transaction. The District Court granted the enhancement, which
increased Gilmore’s advisory range of incarceration under the

                               7
Sentencing Guidelines to 87 to 108 months. The District Court
then sentenced Gilmore to 90 months of imprisonment followed
by five years of supervised release. Gilmore filed a timely
appeal of his conviction and sentence.

                               II.

       Gilmore argues that his conviction should be vacated
because the District Court improperly admitted evidence of his
prior felony drug convictions at trial.2 We review the District


       2
         We are satisfied that Gilmore’s other grounds for appeal
are without merit, and do not require extensive discussion. First,
Gilmore asserts that the Government unlawfully withheld
certain information about a particular phone number, but he has
not shown how any of this information was material to his
preparation of a defense, or favorable to him on the issue of his
guilt or punishment. See Brady v. Maryland, 

(1963); Fed. R. Crim. P. 16. Second, the Government’s delay in
seeking an indictment against Gilmore and its failure to record
the in-person meetings between Gilmore and Severino are not
so “shocking, outrageous, and clearly intolerable” as to be an
“outrageous law enforcement investigative technique” that rises
to the level of a due process violation. See United States v.
Nolan-Cooper, 

, 230–31 (3d Cir. 1998). Third, the
District Court did not abuse its discretion in allowing Special
Agent Del Viscio, an experienced drug investigator, to testify as
an expert on the meaning of coded drug language. See United
States v. Watson, 

, 306–07 (3d Cir. 2001). That

                                8
Court’s decision to exclude or admit evidence for an abuse of
discretion, but we have plenary review of the District Court’s
interpretation of the Federal Rules of Evidence. United States
v. Mornan, 

, 377 (3d Cir. 2005).

       At the outset, we reject Gilmore’s assertion that the
District Court admitted the evidence of his prior felony
convictions for an improper purpose under Rule 404(b). Rule
404(b) prohibits the admission of evidence of past crimes “to
prove the character of a person in order to show action in
conformity therewith.” Fed. R. Evid. 404(b). It does not,
however, bar the use of such evidence for other purposes.
United States v. Boone, 

, 187 (3d Cir. 2002). Here,
the District Court permitted the Government to ask Gilmore
about his prior convictions for another purpose, namely to
contradict Gilmore’s testimony that he never sold drugs.


Gilmore disagrees with the Government about whether he used
code is of no consequence. Fourth, Gilmore’s testimony
denying involvement in any drug conspiracy and offering an
alternative explanation for his correspondences with Severino is
in direct contradiction with the jury’s guilty verdict. The
District Court did not clearly err in finding Gilmore’s testimony
false, material, and made with the willful intent to provide false
testimony, and, as a result, imposing a two-level enhancement
under Sentencing Guideline § 3C1.1. See United States v.
Johnson, 

, 154 (3d Cir. 2002). Fifth, the District
Court’s within-Guideline sentence is reasonable. See Rita v.
United States, 

, 2462 (2007).

                                9
        Impeachment by contradiction is a means of “policing the
‘defendant’s obligation to speak the truth in response to proper
questions.’” United States v. Greenidge, 

, 99 (3d
Cir. 2007) (quoting United States v. Havens, 

, 626
(1980)). Accordingly, “‘[w]here a defendant testifies on direct
examination regarding a specific fact, the prosecution may prove
on cross-examination that the defendant lied as to that fact.’”
Id. (quoting United States v. Gambino, 

, 503 (2d
Cir. 1991)). Rule 607 of the Federal Rules of Evidence
authorizes impeachment by contradiction, and Rule 403 governs
its application. Id. Therefore, the Government may impeach a
defendant’s testimony with contradictory evidence unless the
“probative value [of the evidence] 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 evidence.” Fed.
R. Evid. 403.

       Here, the District Court did not abuse its discretion in
allowing the Government to ask Gilmore about his two prior
felony drug convictions. Gilmore’s denial concerning his
involvement in drug sales was unqualified; he testified that he
“never” sold drugs. His prior convictions indicate otherwise and
are of undisputable probative value. Certainly, any similarities
between the nature of Gilmore’s prior drug convictions and his
allegedly criminal conduct in this case have the potential to
cause unfair prejudice; however, the District Court minimized
that potential by not allowing the Government to enter the

                              10
certified judgments into evidence unless Gilmore denied the
convictions, and by twice issuing a limiting instruction to the
jury.

       Our conclusion is consistent with those reached by other
courts of appeal. See, e.g., United States v. Bender, 

, 470–71 (6th Cir. 2001) (permitting the government to
cross-examine the defendant about prior drug trafficking
convictions because she testified on direct examination that she
had never sold drugs and did not start using them until 1992);
United States v. Norton, 

, 243–45 (1st Cir. 1994)
(affirming the District Court’s decision to allow the government
to cross-examine the defendant about his prior conviction for
unlawfully carrying a firearm after the defendant testified that
“I never had a gun in my life in that car. Or on my possession
or anywhere”); United States v. Lopez, 

, 1032–35
(5th Cir. 1993) (allowing the government to produce a record of
the defendant’s prior conviction for possession of marijuana in
order to impeach the defendant’s testimony that he had never
seen the drug in person). Like Gilmore, the defendants in each
of those cases had prior convictions that belied their blanket
denials on the witness stand of ever engaging in conduct similar
to the charged conduct. Like the District Court here, the trial
courts in each of those cases issued a limiting instruction to the
jury. Bender, 265 F.3d at 471; Norton, 26 F.3d at 245; Lopez,
979 F.2d at 1032. Like the courts of appeal in those cases, we
hold that the District Court did not abuse its discretion here.



                               11
        Gilmore suggests that the ages of his convictions should
weigh against their admissibility. Indeed, Rule 609(b) sets two
conditions on the use of a prior felony conviction to attack the
credibility of a witness if the conviction is over ten years old: 1)
its probative value must substantially outweigh its prejudicial
effect, and 2) the proponent must give advance written notice to
the adverse party that is sufficient to give the adverse party a fair
opportunity to contest its use. Fed. R. Evid. 609(b).

       Rule 609, however, does not govern here. Rule 609
controls the use of prior felony convictions to impeach a
witness’ general character for truthfulness, but impeachment by
contradiction concerns the use of evidence to impeach a witness’
specific testimony. See Norton, 26 F.3d at 243–44 (noting that
“Rule 609 evidence is admissible for the purpose of attacking
credibility generally,” but that “[p]rior convictions are
admissible under Rules 402 and 403 to contradict specific
testimony”); Lopez, 979 F.2d. at 1033 (“The fundamental
problem with the application of either Rule 608 or 609 is that
neither rule applies ‘in determining the admissibility of relevant
evidence introduced to contradict a witness’s testimony as to a
material issue.’” (citations omitted)). Accordingly, prior felony
convictions more than ten years old may be used to impeach by
contradiction even if they do not satisfy Rule 609’s balancing
and notice conditions. See Norton, 26 F.3d at 244 (affirming the
use of a twenty-nine year-old conviction because it was
admissible under Rules 402 and 403); Lopez, 979 F.2d at
1032–34 (upholding the use of a seventeen year-old conviction

                                 12
to impeach by contradiction because it passed Rule 403
balancing); see also Bender, 265 F.3d at 470–71 (allowing the
use of two twelve year-old convictions to impeach the credibility
of a witness who had made “misleading” statements).

        Notwithstanding Rule 609’s inapplicability, a prior
conviction’s age may still bear on the Rule 403 analysis required
for impeachment by contradiction. For example, a conviction’s
age may affect its probative value. A witness’ broad denial of
ever selling drugs makes any drug sale conviction probative,
regardless of its age. A more limited denial like “I don’t sell
drugs,” however, may make the probative value of a prior drug
sale conviction dependent on its age; the more recent the
conviction, the more probative it will be. Additionally, the age
of a conviction may influence its potential for unfair prejudice.
Under certain circumstances, an older conviction might even be
less prejudicial than a more recent one. See Norton, 26 F.3d at
244–45 (remarking that the fact that “[t]he conviction was 29
years old, and . . . [defendant’s] transgression had occurred
many years ago, when he was a ‘very young man’” helped
minimize the prejudicial effect of the conviction). Accordingly,
a district judge faced with the proffer of past criminal conduct
to impeach a witness’ testimony by contradiction may properly
consider the age of that conviction using standard Rule 403
analysis, though without resort to Rule 609.

       Here, the ages of Gilmore’s prior convictions offer him
no aid. Any prior drug sale conviction, regardless of age, is

                               13
highly probative of whether Gilmore “never did” sell drugs.
Any unfair prejudice resulting from the ages of the proffered
convictions does not substantially outweigh this probative value.

                              III.

       Gilmore’s complete denial of ever selling drugs opened
the door to his prior felony drug convictions. The District Court
did not abuse its discretion by giving the Government
permission to step through that door. Accordingly, we will
affirm the District Court’s judgment.




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