The government correctly points out that Mr. al-Hela did not raise the first two arguments before the panel, Resp. Br. 60, which is grounds for forfeiture on rehearing, see United States v. Whitmore, 384 F.3d 836, 836-37 (D.C. Cir. 2004) (per curiam); Price v. Barry, 53 F.3d 369, 371 (D.C. Cir. 1995) (per curiam). But given that we granted rehearing to determine whether the Due Process Clause entitles Petitioner to relief, we will exercise our discretion in this instance to consider all of Mr. al-Hela's due process arguments on rehearing.
ORDERED that the petition be denied. See United States v. Whitmore, 384 F.3d 836, 836 (D.C. Cir. 2004) ("[A] party may not raise an issue for the first time on rehearing."); Keating v. FERC, 927 F.2d 616, 625-26 (D.C. Cir. 1991) (treating as waived argument made for the first time in petition for rehearing).
" The second item is a footnote in United States v. Davis, 183 F.3d 231, 257 n. 12 (3d Cir.), as amended by 197 F.3d 662 (1999), which, citing the Saltzburg article, states that the government "may [on cross-examination] question Davis [a defense witness] about lying to an Internal Affairs officer about ripping up an individual's subway pass[, but] if he denies that such events took place, . . . the government cannot put before the jury evidence that he was suspended or deemed a liar by Internal Affairs." See also United States v. Whitmore, 384 F.3d 836 (D.C. Cir. 2004) (per curiam), which appears to approve of the statement in Davis. The passage in the committee note is not keyed to any change in the text of Rule 608(b) made by the 2003 amendments; in effect it is post-enactment legislative history — and not by a legislature, either; it is a statement by a committee of the Judicial Conference of the United States, i.e., a committee of judges.
In United States v. Whitmore , the Court noted that a party's argument about an Advisory Committee Note for the Federal Rules of Evidence was improperly raised for the first time on appeal. 384 F.3d 836, 836-37 (D.C. Cir. 2004). In Bryant v. Gates , the Court found an as-applied Free Speech challenge to be waived because it was not raised in either the district court or the appellate court. 532 F.3d 888, 898 (D.C. Cir. 2008).
This prohibition extends to "any reference to the consequences that a witness might have suffered as a result of an alleged bad act[,]" such as any investigation, disciplinary proceeding, or termination resulting therefrom. Fed. R. Evid. 608, Advisory Committee Notes; see also United States v. Davis, 183 F.3d 231, 257 n.12 (3d Cir. 1999); United States v. Whitmore, 384 F.3d 836, 836 (D.C. Cir. 2004). Evidence Rule 608(b) does, in the Court's discretion, permit one to inquire of a witness on cross-examination about specific instances of dishonesty.
The Second Circuit's approach contrasts with others that allow impeachment by inquiry into the underlying facts of a past judicial or executive branch proceeding but disallow questions about the proceeding's conclusions or consequences, which are extrinsic evidence. See Fed. R. Evid. 608(b), Advisory Committee's Note to 2003 amend.; United States v. Whitmore , 384 F.3d 836, 836–37 (D.C. Cir. 2004) ; United States v. Davis , 183 F.3d 231, 256, 257 n.12 (3d Cir. 1999) ; Deary v. City of Gloucester , 9 F.3d 191, 196–97 (1st Cir. 1993) ; United States v. Lopez , 944 F.2d 33, 37–38 (1st Cir. 1991) ; Waymire v. Miami Cty. Sheriff's Office , 2017 WL 4324760, at *2–3, 2017 U.S. Dist. LEXIS 160918, at *6–7 (S.D. Ohio Sept. 29, 2017). [¶ 21] We note also that the overarching, bright-line rule of M.R. Evid. 608(a) prevents the admission of personal opinions regarding a witness's credibility or truthfulness.