In U.S. v. Williams, No. 04-4268 (9/27/06), the defendant was on trial on drug conspiracy and weapons charges. The government’s central witness, Carter, asserted on cross-examination that he (Carter) had never committed murder. Defense counsel sought to impeach Carter as to this assertion. Counsel advised the court that a confidential witness had told an ATF agent that he had heard from another person that Carter had stabbed an individual to death in Philadelphia. The district court prohibited the cross examination, ruling that under Fed. R. Evid. 608(b) the fact that Carter committed murder was not probative of truthfulness or untruthfulness, and also that the weak evidence that Carter committed murder should be excluded under Rule 403. The Third Circuit (Judge Fuentes) found no abuse of discretion: "Even if the evidence that Carter committed murder had been strong, it was not clearly relevant to Carter’s truthfulness as a witness and had a strong potential to prejudice the jury." If the witness had not asserted on direct examination that he had never committed murder, this logic holds up. However, in light of the witness’s affirmative assertion on direct, the ruling is more troubling. Rule 608(b) concerns confrontation of a witness with a prior act that demonstrates the witness’s character for truthfulness or untruthfulness, and that therefore in and of itself tends to show that the witness lacks or has credibility. But in Williams the defense was not trying to show that because Carter was a murderer, he was also a liar. Rather, the purpose of the cross examination was to contradict Carter’s direct testimony that he had never committed a murder. Perhaps future application of the opinion will turn on the extremely weak evidence showing that Carter committed the murder.
The court also rejected, under a plain error standard of review, the defense challenges to the multiple/single conspiracy instructions and sufficiency of the evidence. As to the sentence, the court remanded the conspiracy sentence because the original sentencing hearing took place prior to Booker. The court upheld the mandatory sentence under 18 U.S.C. § 924(c), which had been enhanced from 5 to 10 years based on the judge’s finding at sentencing by a preponderance that the firearm had been discharged, ruling that Harris is still good law and that therefore the constitution does not prohibit judicial fact-finding at sentencing within the maximum sentence authorized by the jury’s verdict.