Third Circuit Notes “Textbook” Example Of Impeachment By Contradiction

After the defendant denied being a drug dealer, the government could impeach him with two prior drug distribution convictions, in United States v. Gilmore, 553 F.3d 266 (3d Cir. Jan. 20, 2009) (No. 07-3139)

Under what circumstances can a witness be impeached by contradiction? The Third Circuit recently considered a case which “presents ... a textbook example of how trial counsel may properly use past criminal conduct to impeach a witness’ testimony by contradiction.” Gilmore, 553 F.3d at 268-69.

In the case, defendant Gilmore proceeded to trial on charges of conspiring to possess with intent to distribute cocaine. At trial, the defendant took the stand and testified on direct examination as follows:

“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.”
Gilmore, 553 F.3d at 269-70. After this exchange, the prosecutor alerted the trial court that he intended to cross examine the defendant concerning two prior drug distribution convictions to contradict the defendant’s testimony that he did not sell drugs. The trial court overruled the defendant’s objection. The following transpired on cross-examination:
“Q: Mr. Gilmore, you testified on direct that you never sold drugs, correct?
A: Yes, I did.
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.”
Gilmore, 553 F.3d at 270. The jury was given a limiting instruction after the cross-examination and during the final charge that the cross-examination could be considered only for credibility purposes and not as evidence of guilt. The defendant was convicted and on appeal challenged the admission of the evidence of his prior convictions.

The Third Circuit affirmed. First, the introduction of the prior conviction evidence was “authorize[ed] under FRE 607 as impeachment by contradiction. After the defendant testified about a particular fact, the government could show that “the defendant lied as to that fact.” Gilmore, 553 F.3d at 271 (citing United States v. Greenidge, 495 F.3d 85, 99 (3d Cir. 2007) (no error in prosecution cross examination of bank fraud defendant about consumer and criminal complaints made against her in light of her volunteered denial that any such complaints had been made against her)). Since the defendant’s testimony denying any involvement in drug sales was “unqualified,” the cross examination was no unfairly prejudicial.

The Third Circuit rejected the defense contention that the evidence was inadmissible under other rules. FRE 404(b) did not apply since the prior conviction evidence was not offered to prove a person’s action in conformity with character. However, rule did not bar the prior conviction to contradict the defendant’s assertion that he never sold drugs was a permissible purpose under the rule.

Similarly, the general bar against using a conviction more than ten years old under FRE 609(b) did not preclude the evidence since the impeachment was not concerning the defendant’s “general character for truthfulness,” but impeachment by contradiction which “concerns the use of evidence to impeach a witness' specific testimony.” Gilmore, 553 F.3d at 272.

United States v. Gilmore is assessed in greater detail in volume 6, number 2 (February 2009) of the Federal Evidence Review. Subscriptions to the Review are available on the Subscription Page.


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