## Facts

- Gerald F. Whitmore was indicted for (1) felon in possession of a firearm and ammunition, 18 U.S.C. § 922(g)(1), and (2) simple possession of cocaine base, 21 U.S.C. § 844(a).
- Police officers dispersed a crowd at a bus stop; Whitmore did not leave and fled when approached.
- During the chase, one officer testified Whitmore kept his right hand near his waist and his jacket pocket appeared weighted.
- Officer Efrain Soto testified that he saw Whitmore throw a gun toward a building; another officer later recovered a firearm from a window well in that direction.
- Officers found a small bag of cocaine base in Whitmore’s jacket pocket.
- At trial, Whitmore argued Soto fabricated the firearm allegation and planted the gun; Soto was the only witness who testified to conduct establishing the firearm offense.
- Whitmore sought to impeach Soto with (a) Rule 608(a) reputation/opinion testimony from three proposed witnesses and (b) Rule 608(b) cross-examination about specific misconduct, including a prior judicial finding that Soto had lied under oath in another case.
- The district court excluded the proposed Rule 608(a) witnesses and barred the Rule 608(b) cross-examination.
- A jury convicted Whitmore on both counts; the district court imposed 83 months on the firearm count and 12 months concurrent on the drug count, plus supervised release.

## Issues

1. Whether the district court abused its discretion under Federal Rule of Evidence 608(a) and Rule 403 by excluding proposed reputation/opinion witnesses offered to show Officer Soto’s untruthfulness.
2. Whether the district court abused its discretion under Federal Rule of Evidence 608(b) and violated the Sixth Amendment Confrontation Clause by barring cross-examination of Soto about specific acts probative of truthfulness, including a prior judicial finding that he lied under oath.
3. Whether any erroneous restriction on impeachment was harmless in light of the remaining evidence.

## Decision

- The court reversed Whitmore’s firearm conviction and remanded for a new trial on that count.
- The court held the district court erred by prohibiting Rule 608(b) cross-examination into highly probative specific conduct bearing on Soto’s truthfulness, including a prior judicial finding that he lied under oath.
- The court concluded the restriction deprived Whitmore of a meaningful opportunity to challenge the credibility of the only witness directly linking him to the firearm offense.
- The error was not harmless given the central role of Soto’s testimony in proving possession and disposal of the firearm.
- The court did not reach Whitmore’s sentencing argument concerning whether a prior conviction qualified as a “crime of violence” under the Sentencing Guidelines.

## Legal Principles

- Federal Rule of Evidence 608(a) permits reputation or opinion testimony about a witness’s character for truthfulness only if the proponent lays an adequate foundation showing sufficient familiarity with the witness and the relevant community; exclusion may be sustained where the foundation is lacking or the testimony is speculative.
- Federal Rule of Evidence 608(b) permits cross-examination about specific instances of conduct if probative of a witness’s character for truthfulness or untruthfulness; trial courts retain discretion but may not impose categorical bans that foreclose meaningful credibility testing.
- A prior judicial finding that a witness lied under oath is strongly probative impeachment material on truthfulness and may be essential where the prosecution’s proof of an element depends on that witness.
- Under the Sixth Amendment Confrontation Clause, a defendant must have a meaningful opportunity to challenge the credibility of a key adverse witness; evidentiary discretion is constrained when credibility is outcome-determinative.
- When impeachment restrictions implicate confrontation rights in a witness-centered case, the government must show the error was harmless; where excluded impeachment goes to the truthfulness of the sole link to the charged conduct, prejudice is likely.

## Conclusion

The court ordered a new trial on the felon-in-possession count because the district court’s categorical exclusion of Rule 608(b) impeachment—especially regarding a prior judicial finding that the officer lied under oath—unconstitutionally curtailed cross-examination of the only witness providing direct proof of the firearm offense, and the resulting error was not harmless.


United States v. Whitmore, 359 F.3d 609 (D.C. Cir. 2004)