2009 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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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Recommended Citation

"USA v. Gilmore" (2009). 2009 Decisions. Paper 1956.

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1

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)
2

 

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
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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.
4

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.
5

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
On March 12, 1992, Gilmore pleaded guilty to 1) 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.

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two prior felony drug distribution convictions in order to 1

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.
7

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
We are satisfied that Gilmore’s other grounds for appeal

2

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, 373 U.S. 83

(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, 155 F.3d 221, 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, 260 F.3d 301, 306–07 (3d Cir. 2001). That

8

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. We review the District 2
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, 302 F.3d 139, 154 (3d Cir. 2002). Fifth, the District

Court’s within-Guideline sentence is reasonable. See Rita v.

United States, 127 S. Ct. 2456, 2462 (2007).

9

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, 413 F.3d 372, 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, 279 F.3d 163, 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.
10

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, 495 F.3d 85, 99 (3d

Cir. 2007) (quoting United States v. Havens, 446 U.S. 620, 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, 951 F.2d 498, 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
11

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, 265 F.3d

464, 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, 26 F.3d 240, 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, 979 F.2d 1024, 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.
12

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
13

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
14

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.