*1 America, UNITED STATES
Plaintiff-Appellee, Dewey SIMS,
James
Defendant-Appellant.
No. 78-5082. Appeals,
United States Court of
Sixth Circuit.
Argued Oct.
Decided Dec. *2 18, 1970, May
of Sims on in the McCreary County Whitley City, Circuit Court at Ken- tucky, of felony crime of knowingly possessing property. stolen Sims testified that he had knowledge pistol being of the in his vehicle. He stated Thursday, that on March his son neighbor boy vehicle, and a cleaned out the including space beneath the driver’s day seat. On the following Sims traveled Somerset, Kentucky, Cincinnati, from Ohio, attend funeral of a relative. He testified he pis- was unaware that the was by tol in his car until it was found deputy sheriff. appellant’s felony addition Crabtree, London, Gary for Ky., William viction, prosecution introduced,
defendant-appellant. purpose impeachment, of evidence of two prior felony other appellant, convictions of Molloy, Atty., H. Patrick U. S. Robert F. of both which were more than old. Atty., Lexington, Asst. Trevey, Ky., U. S. One was a 21 year burgla- old conviction for plaintiff-appellee. ry year in 1956. The second was a 12 PHILLIPS, Judge, Before Chief conviction for transportation interstate of a ENGEL, Judges. LIVELY and stolen motor vehicle in 1965. A trial of Sims this indict- PHILLIPS, Judge. Chief ment resulted a deadlocked Evi- appeal' presents question This of convictions, dence of his two old the 1956 whether the district court abused discre- burglary conviction for and the 1965 convic- by permitting tion Government tion for transportation interstate of a stolen impeach appellant by evi- introducing vehicle, were introduced in the earlier prior felony two dence of convictions which old, were more than ten in violation appeal sole issue on whether was Evi- Federal Rules of reversible error to allow dence. appellant by evidence of the felo- Dewey appeals James from his Sims ny both more than ten possession as a firearm old. previously convicted felon in violation of 18 Section 609 the Federal Rules Evi- U.S.C.Appendix 1202(a)(1). On March § provides dence as follows: was County, arrested in Pulaski Sims Kentucky, driving while his automobile. Impeachment by Rule 609. Evidence of vehicle, During a search Sims’ Pulaski Conviction of Crime County deputy sheriff found a .38 caliber (a) revolver underneath the front seat on the General rule. For the attacking driver’s side. Sometime in March of a evi- that same .38 caliber revolver had been dence that has been convicted of a neigh- stolen from home one Sims’ crime shall be admitted if elicited from bors. was indicted on a or by public Sims and convicted him established record dur- single ing charging count indictment him with but only cross-examination being possession punishable a convicted felon in of a crime death or im- underlying felony prisonment firearm. The year excess convicted, recited indictment was the law under which he was period determines that the parole, probation, and the court or admitting value of this evidence out- tive granted sentence or with respect to the de- weighs to his most recent whichever fendant, dishonesty involved or is the later date. statement, regardless punish- false The Advisory Committee note states: *3 ment. recognize Few statutes a time limit on (b) Time limit. Evidence of a convic- impeachment by evidence of conviction. if tion under this rule is not admissible a However, practical considerations of fair- period years elapsed of more than ten has relevancy ness and demand that some of the conviction or of the since the date boundary recognized. be the witness from the confine- release of conviction, which- imposed ment for that The rule was revised successively in date, unless the ever is the later court House, Senate, and in the Confer determines, justice, in the interests of Practice, ¶ ence. 10 Moore’s Federal [1.-11] probative (2d 1976.)1 at VI-120 ed. The legislative by specific facts and circum- supported history surrounding these revisions evi preju- stances dences a basic distrust in the val However, evidence of a dicial ue of convictions years more than ten old years than conviction more old cal- when evidence of such convictions is used to herein, is not admissible unless culated impeach the credibility of a witness. gives party to the adverse proponent The legislative history further demon- sufficient advance written notice of in- strates an intent that evidence of convic- provide evidence to tent to use such tions than years more ten old should be party opportunity adverse with a fair very admitted rarely only exception- evidence. contest the use of such al circumstances. The House version of the of the Federal Rules of In the version rule, original like the version adopted by Supreme adopted by Evidence Court in Court, Supreme unequivocal took the 609(b) was as follows: Rule position that evidence of convictions more (b) Limit. —Evidence of a convic- Time than ten years could never be admitted for this rule not admissible if a tion under impeachment.2 period years elapsed of more than ten has adopted The Senate a modified version of the release of the wit- since the date imposed proposal, the House exacting ness from confinement for his but included conviction, expiration most recent or the standards for admission of convictions. 2. H.R. 1. For a detailed dence, Congressional reprinted News Shapiro, tion, years lease of the witness 91-358, not admissible respect expiration posed for his most recent modeled Rule ever is the later 1970. The Rule Evidence of Rep. or sentence has to his most recent in, 14 D.C.Code after 7085 stated: No. elapsed [1974] debates, as submitted a 93-650, Section if a legislative history, conviction under date. provided: period U.S.Code granted since See also United States v. period 305(b)(2)(B), see 3 Weinstein’s Evi from confinement 93rd 133(a) the date of the re- conviction, his Cong. Cong., 1st of Public Law the Court was parole, proba- this rule is enacted in & Admin. including than which- or the Sess., with im- ten from witness had been most witness, ten in the text of the 1971 or record of criminal convictions could be used Under this was of the view that after ten person’s where ue of the conviction with the date of his a met the conviction. version for that er be used for person’s The Committee amended the Rule to read probation years the standard of subdivision confinement, offense, or of his release from confinement credibility from the date of a conviction of a provide should no release from confinement formulation, had impeachment. conviction) that conviction expired, or the (provided diminished to a longer upon a witness’ entire Advisory period within ten recently respect The Committee years following the conviction be admissible. may expiration Committee (a), (or released years to that parole long- from past val- allowed the use of con- The Senate version Conference Committee adopted the Senate version but requirement added the ten old for victions more than for advance notice of intention to request impeachment purposes under limited articu- the court to allow evidence of Judiciary lated circumstances. Senate older than years.4 ten The Conference reported as follows:3 Committee version, Committee law, which became re- Although convictions over the apprehension flects Supreme have much generally do not Court and Congress both Houses of value, may there be circum- little, stale any, convictions have stances under which the conviction sub- tive value determining the credibility of stantially bears and their admission into evidence witness. Rather exclude all convic- should allowed exceptional cir- old, the tions over 10 committee cumstances. *4 adopted an amendment in the form of a An important purpose 609(b) granting final to the section the clause is to avoid convicting criminal defendants court discretion to admit convictions over as a result prejudice by caused the old, years only upon 10 a but determina- cumulative effect of old criminal convic by tion the court that the value tions. When stale convictions are offered supported specific of the conviction by for the of impeaching a circumstances, facts and substantially they light often shed little on thé present tendency its outweighs prejudicial effect. the witness towards truthful veracity. ness and In United States v. Har that over It is intended convictions 10 ding, 84, (7th 525 F.2d 89 1975), Cir. the will very rarely be admitted and court stated: in circumstances. The prior When the conviction is to used provide rules that the decision be sup- impeach a defendant who elects to take ported by specific facts and circumstances the stand testify behalf, to in his own requiring specific thus the to court make inferences, permissible and the other on findings particular the record as to the impermissible, inevitably arise. The fact facts and circumstances has considered that the defendant has in past sinned in determining that value implies that he is likely give more to false substantially of the outweighs witnesses; testimony than other it also impact. its It prejudicial expected is implies that" he is more likely to have that, fairness, in give court will committed the offense for which he is party against whom the in- being tried than if he had previously a led adequate a full opportunity troduced and blameless life. The law approves of the contest admission. former inference not but the latter. 3. Admin.News reprinted stated: News Sess., H.R.Conf.Rep. that elapsed not be used the date the witness was released from years, mits the use of convictions older than ten ever is later. The Senate amendment subsection S.Rep. finement The The House bill justice, 7051, reprinted Report if the court No. in since the [1974] 7051, 7103. (a) 93-1277, of the Conference Committee of conviction in, No. impeachment purposes determines, provides [1974] U.S.Code date 93-1597, 93rd U.S. Code Cong., Cong. 93d in the interests subsection a crime Cong., & Admin. 2d Cong. which- Sess., may per- (b) 2d & notice impair that a adversary than ten tion, ute pare bility conviction, use of ment with an amendment court circumstances, such information as the date The Conference party involved. allow provision written that jurisdiction, trial, years. a fair ability evidence, supported by specific him flexibility In the Conferees intend that notice, intends to order to eliminate the opportunity operate of a to use a conviction older adopts The Conferees and the offense or stat- will party-opponent of this the Senate amend- requiring to avoid order ordinarily request of the convic- provision may contest anticipate facts notice surprise. give that include possi- pre- by
1149 Belt, 609-40, 41, U.S.App. In United States 169 (1975), 42 the judge should 9, 837, (D.C.Cir. 1975), require 514 F.2d 845 D.C. brief recital by court stated that Rule should of the circumstances surrounding the ad- criminal mission applied evidence, “to defendants where and a statement date, ‘presents a impeachment danger improp nature and place of the con- influencing viction. The erly by the outcome of the trial permit- should be ted to persuading government’s the trier of fact to convict the rebut presenta- tion, pointing defendant on the basis of his criminal out to the possible court the ” record.’ Cf. United States v. effect to the defendant F.2d Cir. evidence is Abbott admitted. Labs., B., Ross Labs. Division v. N. L. R. Some of the factors which the judge the Fourth should take into account making his analogous cited Rule sup determination were articulated then
port
proposition
for its
“Hall’s
Judge Burger in Gordon v.
States,
twenty
criminal record
earlier did
127 U.S.App.D.C.
require
that he be disbelieved.”
(1967):
value of
609(b),
Under Rule
the district
crime.
finding
must make “an on-the-record
based
in time of the conviction
specific
facts and circumstances that the
and the witness’ subsequent history.
probative value of the evidence substantial
*5
danger
the
The
ly
preju
similarity
of unfair
between the past
Mahler,
crime and
charged
dice.” United States v.
579 F.2d
the
crime.
730,
(2d
1978).
734
Cir.
importance
The
of the defendant’s
testimony.
Mahone,
922,
In United
v.
States
537 F.2d
(5) The centrality of the
(7th
denied,
credibility is-
Cir.),
1025,
929
cert.
429
97
U.S.
sue.
646,
(1976),
S.Ct.
has invoked his discretion year old conviction was inadmissible for 609, urge judges under Rule we trial purposes impeachment. Judge Gewin make such after a hearing determinations said: record, on the as the trial did in the well-settled, It is however, that to be case, explicitly instant and to find that admissible for purpose the other of prejudicial effect evidence to fenses must have occurred at a time not will outweighed by its too remote from the time of commission probative hearing value. When such a principal offense. United States v. the record is held and such an explicit Adderly, (5th 529 F.2d 1180 Cir. made, finding appellate court easily 1976); United v. Arteaga-Limones, will be able to determine whether 529 (5th F.2d 1976); Cir.
judge followed the strictures of Rule 609 Kirk, 1057, 1060 United States v. reaching Weinstein, his decision. 3 J. (5th 1976). Here, Cir. prostitution Evidence at 609-78 ¶ 609[03] offense was committed some fifteen years prior appellant’s Hence, hearing need not be extensive. evidence of it Bearing places should have been mind that Rule 609 excluded because of its remoteness. proof government, burden of on the 12254,12257 e<j., Cong.Rec. (daily Decem Moreover, the critical consideration in 18, 1974) (remarks determining ber of House confer whether other crimes evi- Weinstein, Evidence, ees); 3 J. dence is admissible is whether the ¶ 609[03] 1150 such a 16 prosecutorial year need for old
tive value was felony potential preju outweigh evidence properly found admitted under Rule v. jury. United States San dicing the See impeach the defendant where that (5th 1974); Martin, 505 918 Cir. F.2d directly contradicted the testimo- Anderson, U.S.App. 165 v. United States ny of the defendant. We conclude no denied, (1974), 509 312 cert. D.C. F.2d “exceptional present- such circumstance” is 1427, 43 672 420 95 L.Ed.2d U.S. S.Ct. appellant’s prior ed use of convictions Goldsmith, (1975); United the instant case. 1973). Cir. 536 F.2d at appellant, trial of when the knowledge had his two old Accord, Shapiro, supra, United States resulted in a deadlocked F.2d 479 At trial the present appeal, involved in gave In the case the present Government permitted Government was to introduce required by Rule. notice The dis- of appellant’s two convic- following trict court stated basis for appellant’s tions credibility because allowing admission convictions “essentially the whole case” and because than ten old: were convictions of that cred- upon I think based that the ibility. With the evidence of those two given has sufficient ad- United States them, previous convictions before the mem- vance here and that I believe in notice bers the jury discredited the testimony of justice value interest appellant and a guilty returned verdict. substantially convictions out- these think, weighs I agree We cannot prime I factor in is that year burglary having benefit tried case before year or a 12 transporting old conviction for really comes down somewhat and the case a stolen motor vehicle out of the defend- to the issue weighs their *6 case, ant., course, present In the and of present case. Nor do we find rare and stand, he might take but he exceptional justi circumstances that would case, stand he previous takes the fy the of admission the two stale convic nothing stated that he knew about tions into evidence. Both convictions were a real issue weapon and that’s of credibil- in remote time and necessarily neither shed circumstances, ity. But under different any light upon the credibility appellant. of course, might the Court determine that We conclude that their admission into evi pro- present outweighed dence in the case their case, bative value. But in this probative value and violated both lan these circumstances where his guage and purpose of the rule. case, essentially is whole I think that certainly probative grant I will and The purpose is to request to United States’ use these prevent the conviction of a get two convictions if we to that record, prior basis of his old criminal
when evidence of that record is introduced
ostensibly
purpose
impeaching
creates,
effect,
in
re
credibility,
defendant’s
but
the stale
that convictions over
presumption
buttable
not probative
credibility.
convictions are
ten
old are more
Therefore,
contrary
it is
to
to
helpful
and should
excluded. United
Government,
permit
after a
supra,
v.
ENGEL, dissenting. Judge, my judgment, a conscientious exercise of I would hold that respectfully I dissent. the discretion vested in him under Rule 609. Judge statement of his reasons for Siler’s I would affirm. earlier
admitting the evidence Sims’ require-
victions met at least the minimum 609(b).
ments of Rule proof of Sims’ conviction of a
Since
felony is an essential element of the crime 1202(a)(1) (Appendix),
under 18 U.S.C. § necessarily possessed preju of this regardless whether
dicial information
Likewise,
testified.
we have held in our
America,
The UNITED STATES of
improper
circuit that it is not
for an indict
Plaintiff-Appellee,
charge
prove
ment to
or the
*7
in such cases that the defendant had been
GREER,
Steven Lee
previously convicted of more than one felo
Defendant-Appellant.
Burkhart,
ny. United
might have included the other felonies in placed and thus indictment them event, any
before the without
compliance being required. with Rule 609 course,
Of did not do so
here, suggest nor do I it should have.