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United States v. Gilmore

January 20, 2009

UNITED STATES OF AMERICA
v.
WALTER GILMORE A/K/A BUTCH, APPELLANT



On Appeal from the United States District Court for the District of New Jersey District Court No. 06-cr-00848 District Judge: Honorable Robert B. Kugler.

The opinion of the court was delivered by: Smith, Circuit Judge.

PRECEDENTIAL

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) December 9, 2008.

Before: MCKEE, SMITH, and ROTH, Circuit Judges.

OPINION OF THE COURT

This case presents us with a textbook example of how trial counsel may properly use past criminal conduct to impeach a witness' testimony by contradiction. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. For the reasons set forth below, we will affirm.

I.

On June 26, 2006, Appellant Walter Gilmore called Cesar Severino, a suspected drug dealer, and requested that they meet in person. After the meeting, Severino contacted Julio Lebron and asked him to deliver a kilogram of cocaine from Philadelphia, PA, to Camden, NJ. Lebron agreed. Upon arriving in Camden, Lebron went to Severino's house where Severino tested the cocaine in Lebron's presence.

That evening, Gilmore called Severino and told him to "bring 2 99 cent[] sodas and come to my house." (J.A. 32.) Severino then left his home carrying the cocaine in a black plastic grocery bag. After arriving at Gilmore's house, Severino walked in with a black plastic grocery bag, stayed for about five minutes, and left without it.

When Severino returned home, he paid Lebron $20,000 for the cocaine. Lebron took the money, put it in his wife's purse, and began to drive back to Philadelphia. Along the way, police stopped Lebron's car for speeding, and recovered $20,418 from Lebron's wife's purse.

On July 26, 2006, a grand jury indicted Gilmore and Lebron each on one count of knowingly and intentionally conspiring to distribute and to 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. Eight days later, agents from the Drug Enforcement Administration ("DEA") arrested Gilmore and searched his home pursuant to valid warrants. The agents recovered a cell phone, a cell phone bill, and drug paraphernalia, but no cocaine.

Gilmore went to trial on February 14, 2007. During his trial, the Government offered evidence that Gilmore's June 26, 2006 phone calls and meetings with Severino concerned the purchase of cocaine. DEA agents testified that, as part of an investigation into Severino's drug-related activities, they conducted surveillance during the meetings between Gilmore and Severino, and recorded the various phone conversations discussing the transaction pursuant to a court-authorized wiretap. Lebron, who by then was cooperating with the Government, testified that he purchased the cocaine in Philadelphia at Severino's request, brought it to Camden, and waited in Severino's house as Severino left with the cocaine and returned with $20,000. DEA Special Agent Darrin Del Viscio testified that Gilmore's reference to "two 99-cent sodas" was code for a kilogram of cocaine. The Government also pointed to Gilmore's phone records, which evidenced numerous phone calls to and from numbers associated with Severino even after June 26, 2006.

Gilmore testified on his own behalf and denied buying any cocaine from Severino. Gilmore did not deny that he had multiple meetings and phone conversations with Severino on June 26, 2006. Instead, Gilmore testified that those phone calls and meetings concerned a loan that Severino had made to Gilmore. Gilmore also testified that his request for two 99-cent sodas was not ...


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