## Facts

- A federal grand jury in the District of New Jersey indicted Walter Gilmore and Julio Lebron for conspiring to distribute and 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.
- On June 26, 2006, Gilmore contacted Cesar Severino and arranged to meet in person; Severino then arranged for Lebron to deliver a kilogram of cocaine from Philadelphia to Camden.
- Lebron delivered the cocaine to Severino, who tested it; later, Gilmore called Severino and told him to “bring 2 99 cent sodas” and come to Gilmore’s house.
- Surveillance observed Severino leave his home carrying a black plastic bag, enter Gilmore’s house briefly, and leave without the bag.
- Severino paid Lebron $20,000; police later stopped Lebron’s car and recovered $20,418 from Lebron’s wife’s purse.
- DEA agents arrested Gilmore and searched his home pursuant to warrants, recovering a cell phone, a phone bill, and drug paraphernalia.
- The government presented recordings of phone calls obtained through a court-authorized wiretap and surveillance evidence connecting the calls and meetings to the cocaine transaction.
- At trial, Gilmore testified and made a categorical denial: “I don’t sell no drugs. I never did.”
- Over objection, the district court permitted cross-examination about Gilmore’s two 1992 felony convictions for drug distribution-related offenses; Gilmore admitted them.
- The district court instructed the jury that the prior convictions could be considered only for credibility, not as proof that Gilmore committed the charged conspiracy.
- The jury convicted Gilmore, and he appealed, challenging admission of the 1992 convictions under Federal Rules of Evidence 404(b), 609, and 403 and asserting the limiting instructions were inadequate.

## Issues

1. Whether the district court improperly admitted Gilmore’s 1992 drug convictions as propensity evidence in violation of Federal Rule of Evidence 404(b), rather than as impeachment by contradiction of his categorical testimony.
2. Whether admitting the decades-old convictions for impeachment was improper or unfairly prejudicial under Federal Rule of Evidence 609 and Rule 403, despite limiting instructions.

## Decision

- The Third Circuit affirmed the conviction.
- The court held the district court did not err in allowing impeachment by contradiction with the 1992 drug convictions after Gilmore testified broadly that he had never sold drugs.
- The court concluded the convictions were used for a permissible credibility purpose, not to show character or propensity.
- The court relied on the district court’s limiting instructions restricting the jury’s use of the convictions to credibility.
- The court determined the district court acted within its discretion under Rules 404(b), 609, and 403.

## Legal Principles

- When a defendant testifies in categorical terms about never engaging in certain conduct, the government may impeach by contradiction using prior criminal conduct or convictions that directly refute that testimony.
- Use of prior convictions to contradict sweeping testimony is a permissible non-propensity purpose under Rule 404(b) because it targets credibility and the truth of the witness’s assertion, not character.
- Under Rules 609 and 403, a trial court may admit prior convictions for impeachment when their probative value on credibility—especially to counter a broad denial—is not substantially outweighed by the danger of unfair prejudice.
- Repeated, clear limiting instructions directing the jury to consider prior convictions only for credibility support admission and reduce the risk the jury will treat the evidence as proof of guilt.

## Conclusion

The Third Circuit upheld Gilmore’s conspiracy conviction, ruling that his categorical trial testimony opened the door to impeachment by contradiction and that the district court permissibly allowed cross-examination about his 1992 drug convictions with limiting instructions confining their use to credibility.


United States v. Gilmore, 553 F.3d 266 (3d Cir. 2009)