United States v. Whitmore

359 F.3d 609 (D.C. Cir. 2004)

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Nature of the Case

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Facts

Officer Russell while patrolling a neighborhood directed a crowd gathered at a bus stop to disperse. All but D complied. Russell exited his car and D fled. Russell pursued him on foot and noticed that Whitmore while running, held his right hand close to his body at his waist and the right side pocket of his jacket. Officer Soto also spotted D and gave chase, first in his car and then on foot. Soto also noticed D's right hand holding the right side of his jacket. Soto saw D throw a gun toward an apartment building next to an alley D ran into. Soto apprehended D. Soto found a gun in a window well of the apartment building. The weapon (with four rounds of ammunition, one of which was chambered) showed signs that it had been recently thrown against the building: a piece of brick was stuck in its sight, there were scuff marks on it, and it was covered with masonry dust. They discovered a small bag of cocaine base in D’s left pocket. At trial, D claimed that Soto had fabricated the story and had planted the gun. D attempted to call three defense witnesses - Jason Cherkis, Bruce Cooper, and Kennith Edmonds - to testify regarding Soto's 'character for truthfulness' under Fed. R. Evid. 608(a). Cherkis, a reporter, wrote an article in January 2000 reporting that Soto and three other MPD officers were the target of multiple complaints and had a reputation as a liar. The court excluded Cherkis's testimony under Fed. R. Evid. 608(a) because Cherkis was not personally acquainted with Soto and the interviews were too remote in time to be relevant. Cooper was a local criminal defense counsel who believed that Soto was untruthful. Cooper would testify that several defense counsels thought Soto was a liar and that Cooper had the same opinion based on having tried many cases in which Soto was a government witness. The district court excluded Cooper's reputation testimony because, even assuming the 'court community' constituted a recognized community, Cooper did not know Soto's reputation within the entire 'court community' and did not live in Soto's neighborhood. Edmonds was an acquaintance of Soto who used to live in the neighborhood where Soto worked and who saw Soto regularly until roughly five years before the trial when Edmonds moved away but visited often. Edmunds would state that Soto wrongly arrested him for drug possession and that the property of another friend had disappeared when Soto was the arresting officer. This was excluded as too remote. D also sought to impeach Soto by cross-examining him on three subjects: (1) a D.C. Superior Court judge's finding that Soto had lied when Soto testified before him in a 1999 criminal trial; (2) the suspension of Soto's driver's license and Soto's failure to report the suspension to his supervisors; and (3) Soto's failure to pay child support. P moved in limine to exclude cross-examination on the subject under Fed. R. Evid. 608(b) as well as Fed. R. Evid. 403, contending that the judge's finding was only an allegation of misconduct and therefore not probative of Soto's truthfulness and, in any event, was unfairly prejudicial. D was convicted and appealed.