## Facts

- Steven Lundy and Timothy Robinson were private investigators who co-owned a business.
- Federal prosecutors charged Lundy and Robinson with conspiracy, making false statements, and entering a restricted airport area in violation of security regulations.
- The prosecution alleged the defendants tried to pass through airport security with licensed, loaded handguns by falsely claiming they were police officers.
- Before trial, the prosecution filed two motions in limine seeking advance rulings on limits for impeachment and character evidence.
- In the first motion, the prosecution sought permission (if Lundy or Robinson testified) to cross-examine them about alleged misconduct said to bear on truthfulness, even though it did not result in convictions, including:
  - A 2002 arrest of both defendants for allegedly pretending to be law-enforcement officers to attempt to repossess appliances (Robinson’s charges were dismissed for lack of evidence; Lundy was acquitted after a bench trial).
  - A 1994 perjury charge against Lundy based on testimony that he worked for a private-detective agency when he actually worked as a prison guard (dismissed after Lundy completed a pretrial intervention program).
  - The defendants’ alleged failure to pay federal taxes connected to their business since at least 2002.
  - An alleged 2005 lie by Lundy to federal agents that he had been fired from his prison-guard job for moonlighting, when the firing was actually tied to the perjury charge.
- In the second motion, the prosecution sought permission to cross-examine defense character witnesses about whether they knew of the defendants’ prior arrests and convictions.
- Besides the 2002 and 1994 matters, Lundy had convictions for illegally possessing mace (1984) and illegally possessing ammunition (1997).
- The parties represented that all proposed character witnesses had met Lundy and Robinson after 1997.

## Issues

1. When, under Rules 608(b) and 403, may the prosecution cross-examine testifying defendants about specific instances of alleged misconduct (including arrests, dismissed charges, acquittals, and other accusations) to attack credibility?
2. When the defense offers character witnesses, when may the prosecution, under Rules 404(a)(2)(A), 405(a), and 403, cross-examine those witnesses about their awareness of specific past incidents and convictions, including incidents that predate the witnesses’ relationship with the defendants?
3. What restrictions apply (including the ban on extrinsic proof) to keep impeachment and character questioning from turning into disputes over side matters?

## Decision

- The court ruled on the prosecution’s motions in limine by allowing some proposed credibility and character-witness inquiries and limiting others.
- As to cross-examining Lundy and Robinson (if they testified), the court permitted questioning about specific acts only to the extent the acts were genuinely probative of truthfulness or untruthfulness and only within bounds set by Rule 403.
- The court allowed the prosecution to pursue limited inquiry into alleged falsehood-based conduct (such as the perjury-related allegation and the claimed lie to federal agents), subject to controlled questioning and without introducing outside proof of the incidents.
- The court treated the 2002 impersonation-related arrests, the alleged tax nonpayment, and similar accusations as topics requiring careful Rule 403 control, given the risk of unfair prejudice and distraction, and limited questioning where the link to veracity was weaker or the danger of side litigation was high.
- As to character witnesses, the court allowed cross-examination designed to test the basis and weight of the witnesses’ opinions or reputation testimony, including “have you heard” or “did you know” questions about certain prior events, so long as the prosecution had a good-faith basis for the questions.
- The court recognized that all proposed character witnesses met the defendants after 1997 and therefore required the government’s questioning to fit the foundation the witness claimed (what the witness knew, heard, or relied on) and to remain proportionate under Rule 403.
- The court barred the prosecution from proving specific instances through extrinsic evidence and directed that the examination be managed to avoid mini-trials about collateral allegations.

## Legal Principles

- A criminal defendant may offer evidence of a character trait; once the defense does so, the prosecution may rebut and may cross-examine the defense character witness about relevant specific instances of conduct to test the witness’s knowledge and the strength of the witness’s opinion or reputation testimony. (Rules 404(a)(2)(A), 405(a))
- On cross-examination, the court may permit inquiry into specific instances of conduct to attack a witness’s character for truthfulness only if the conduct is probative of truthfulness or untruthfulness; the examiner must accept the witness’s answer and generally may not use extrinsic evidence to prove the act. (Rule 608(b))
- Prior-conviction impeachment is governed by Rule 609, and even otherwise allowable impeachment is still subject to Rule 403 balancing for unfair prejudice, confusion, and waste of time.
- Trial courts have broad authority under Rule 403 to limit the scope and form of impeachment and character questioning to prevent unfair prejudice and to keep the trial focused on the charged offenses rather than disputed side accusations.

## Conclusion

In this pretrial evidentiary ruling, the district court set boundaries on how the prosecution could impeach Lundy and Robinson and how it could test defense character witnesses, permitting carefully limited cross-examination about conduct tied to truthfulness while restricting questioning that risked unfair prejudice, confusion, or prolonged disputes over collateral events, and prohibiting the use of extrinsic evidence to prove the alleged misconduct.


United States v. Lundy, 416 F. Supp. 2d 325 (2005)