UNITED STATES of America, Plaintiff-Appellee, v. James Finis TONEY, Jr., Defendant-Appellant.
No. 78-5433.
United States Court of Appeals, Fifth Circuit.
April 9, 1980.
615 F.2d 277
Where an association recruits workers through a crew leader, there is need for control over such activity, even though the association does not deal with the workers directly.
Section 6(b) of the bill requires a crew leader to disclose the terms and conditions of employment to workers, at the time when they are recruited, to the best of his knowledge and belief. A crew leader recruiting for an association may comply fully with this provision; but at the same time it is entirely possible that the association may have misrepresented the terms of employment to the crew leader. In such a situation the worker would be protected only if the association is also subject to the registration requirements.
109 Cong.Rec. 10625 (1963).
In the present fact situation Plunkett is one of two links in the chain of contact between the farmer and the migrant worker. A person may not insulate himself from the provisions of the Act by simply conducting his farm labor contractor activities through underlings who deal more directly with the workers. The regulations of the Secretary support our conclusion that the Act applies tо all middlemen and not just those on the bottom of the farmer to migrant worker chain: “The Act was intended to regulate the practices of all persons functioning in the capacity of middlemen between the farmer, processor, etc., and the migrant worker“.
Appellants met their initial burden of showing applicability of the Act by dеmonstrating that Plunkett is a farm labor contractor who was hired by appellee Gallops. The district court terminated this action prematurely. Upon remand, defendants-appellees should be accorded an opportunity to refute appellants’ prima facie case by contra evidence, and further to demonstrate the applicability of any of the farm labor contractor exceptions. The court shall determine whether any actionable viоlations were committed, and, if warranted, award appropriate relief.
REVERSED AND REMANDED.
Ronald W. Maxwell, Jacksonville, Fla., for defendant-appellant.
Before TUTTLE, TJOFLAT and HILL, Circuit Judges.
JAMES C. HILL, Circuit Judge:
This case presents the question whether a district court has the discretion under rule 403 of the Federal Rules of Evidence1 to prohibit the impeachment of a witness with a conviction for a crime involving dishonesty or false statement (a crimen falsi).2 We hold that the court has nо such discretion and that a cross-examiner has an absolute right to introduce a crimen falsi conviction for impeachment purposes.3
I
On April 4, 1978, James Finis Toney, Jr. was convicted by a jury of mail fraud,
Though Toney did not testify or even proffer his proposed testimony, and though the jury could not have been influenced by the allegedly prejudicial mail fraud conviction, Toney may, nevertheless, claim reversible error in the district court‘s disposition, albeit tentative, of his motion to foreclose the prosecution from attempting a line of impeachment. United States v. Langston, 576 F.2d 1138, 1139 (5th Cir.) (per curiam), cert. denied, 439 U.S. 932, 99 S.Ct. 324, 58 L.Ed.2d 327 (1978); see United States v. Hitsman, 604 F.2d 443, 447 (5th Cir. 1979). We conclude that the district court read rule 609(a)(2) correctly, however; it had no discretion to prevent the prosecution‘s use of the crimen falsi as impeachment evidence. We, therefore, affirm Toney‘s conviction.5
II
It is established that mail fraud is a crime involving “dishonesty or false statement.” United States v. Cohen, 544 F.2d 781, 785 (5th Cir.), cert. denied, 431 U.S. 914, 97 S.Ct. 2175, 53 L.Ed.2d 224 (1977); accord, United States v. Brashier, 548 F.2d 1315, 1326-27 (9th Cir. 1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 565 (1977). Subsection (a)(2) rather than (a)(1) of rule 609 therefore applies in determining the admissibility of a mail fraud conviction for impeachment. Rule 609(a)(2) contains no provision for excluding evidence of a crimen falsi on the ground of undue prejudice; that ground can serve as a basis for excluding such evidence only if rule 403, with its prejudice versus probative value weighing provision, is applicable. Rule 609(a)(2) provides that evidence of a prior criminal conviction for a crimen falsi offense shall be admitted to attack a witness‘s credibility during cross-examination. When discussing rule 609(a)(2) Congress made this clear:
The admission of prior convictions involving dishonesty and false statement is not within the discretion of the Court. Such convictions are peculiarly probative of credibility and, under this rule, arе always to be admitted. Thus, judicial discretion granted with respect to the admissibility of other prior convictions is not applicable to those involving dishonesty or false statement.
H.R.Conf.Rep.No.93-1597, 93d Cong., 2d Sess. 9, reprinted in [1974] U.S. Code Cong. & Admin.News, pp. 7098, 7103 (emphasis added). A number of courts have adhered to this congressional intent, observing that a court has no discretion to exclude evidence of a prior crimen falsi conviction. See, e. g., United States v. Fearwell, 193 U.S.App.D.C. 386, 392, 595 F.2d 771, 777 (D.C.Cir.1979); United States v. Hawley, 554 F.2d 50, 52 (2d Cir. 1977).
Despite the unambiguous language of both rule 609(a)(2) and its legislative history, hоwever, both courts and commentators have posed the question whether the general weighing test of rule 403 determines admissibility where prejudice, which always inheres in the introduction of a conviction for impeachment, is likely. See, e. g., United States v. Papia, 560 F.2d 827, 845 n. 10 (7th Cir. 1977); United States v. Hayes, 553 F.2d 824, 827 n. 4 (2d Cir.), cert. denied, 434 U.S. 867, 98 S.Ct. 204, 54 L.Ed.2d 143 (1977); United States v. Smith, 179 U.S.App.D.C. 162, 172-79 n. 20, 551 F.2d 348, 358-59 n. 20 (D.C.Cir.1976); United States v. Dixon, 547 F.2d 1079, 1083 n. 4 (9th Cir. 1976); P. Rothstein, Rules of Evi-
As we have observed, Congress used absolute language when discussing the admissibility of rule 609(a)(2) offenses. Congress carefully and extensively considered the prior crimes impeachment issue, devoting more time to it than any other rule of evidence. See J. Weinstein & M. Berger, supra. Rule 403 is a general rule, “designed as a guide for the handling of situations for which no specific rules have been formulated.” 28 U.S.C. Rules of Evid. Advisory Comm. Notes at 550 (1976). Rule 609(a)(2) is a well-considered, specific provision enacted to cover a distinct issue in the law of evidence. Congress thoroughly considered the pros and cons of the mandatory admissibility of limited types of prior crimes evidence and determined that in certain cases it was to be the rule. Rule 403 simply has no application where impeachment is sought through a crimen falsi. See Note, Impeachment Under Rule 609(a): Suggestions for Confining and Guiding Trial Court Discretion, 71 Nw.U.L.Rev. 655, 661 (1976). The district court was correct when it held that, if Toney took the stand, the Government had the right to impeach him with his prior mail fraud conviction. Accordingly, the judgment of that court is
AFFIRMED.
TJOFLAT, Circuit Judge, concurring:
I concur in Judge Hill‘s opinion in this case. I write specially, however, because I believe that Toney should not be permitted 1 to raise his evidentiary claims at all. As Judge Hill points out, ante, at 279, Toney, who never took the stand in his own defense or even proffered his proposed testimony, is permitted to appeal the trial court‘s ruling on the
Prior crimes impeachment under rule 609(a)(1) for a non-crimen falsi is based on a judicial balancing of the need for the impeachment and the potential prejudice to the defendant. Quite often, such a balance will be a fine one, and the court will be torn between the prosecution‘s right to show a defendant‘s true colors and the defendant‘s right to be tried only on the charges of the indictment, not on his prior criminal record. See
A court should not be expected to determine before trial whether the defendant will be subject to impeachment under rule 609, even when the defense proffers what the defendant would be expected to say in the event he chose to testify. Rather, the determination should be made only when the actual moment for prior crimes impeachment arrives. At that time, the court will have heard the prosecution‘s case and part of the defense‘s case and can assess the impact of the evidence on the jury. Having heard the defendant‘s testimony on direct examination and on cross, up to the point of the attempted impeachment, the court wоuld be in the best possible position to determine (1) whether the defendant has left himself open to impeachment at all
By reviewing a pretrial ruling on the admissibility of prior crimes for impeachment, we invite resourceful defense counsel to create reversible error. Under the Langston construction of rule 609, reinforced by today‘s holding, defense cоunsel might be considered remiss, perhaps incompetent, for not seeking a pretrial determination whether his client will be subject to impeachment with a criminal record. We invite counsel to pursue such a determination even though he has no intention of placing the defendant on the stand in the presence of the jury. If the court rules that the defendant will be subject to prior crimes impeachment, defense counsel holds potential error in his pocket аs a trump card in case of conviction. On appeal, the defendant should be expected to claim that he was kept off the stand by the court‘s adverse ruling, and that, had he testified, he would have convinced the jury of his innocence or at least created a reasonable doubt as to his guilt.
Langston stands for the proposition that we must review the trial court‘s ruling even where, as here, the record on appeal contains nothing to indicate (1) whether any imрeachment of the defendant by prior crimes was in order and, if so, (2) whether, under rule 609(a)(1), the probative value of the impeachment outweighed its prejudicial effect. I find such a task an impossible exercise. Even in a case where the defendant or his counsel has proffered the defendant‘s proposed testimony, I still would have great difficulty in saying with any degree of confidence, in a rule 609(a)(1) situation, whether the likelihood of undue prejudicial effect on the jury made inappropriate prior crime impeachment. We would be inclined, I think, to accept an appellant‘s representation that he would have testified but for the trial judge‘s ruling; we would also be inclined to hold that the trial judge‘s erroneous ruling was not harmless.
Should the trial judge rule for the defense on the impeachment question, the defendant could not be forced to take the stand, even where he has represented in his pretrial motion, or in his proffеr, that he would testify. Any trial changes complexion as it progresses, and a defendant who, earlier, may have anticipated testifying, may well conclude at the eleventh hour that to do so would be foolhardy.
If a trial judge adopts the policy of considering objections to prior crimes impeachment after a defendant has taken the stand, direct examination is over, and the moment of impeachment has arrived, only those defendants actually prеjudiced by an adverse ruling will be heard on appeal. If the impeachment was inappropriate, reversible error would be found. It is true that a defendant will have to risk an adverse ruling if he chooses to testify, but this is not an undue burden for him to bear. It is a burden that he must bear when faced with any other potentially damaging impeachment.
I do not write on a clean slate here. In New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979), the Supreme Court permitted a state court defendant who failed to testify at trial to raise a constitutional objection to a trial сourt ruling that, he claimed, kept him off the stand. In so holding, the Court did not say that it had to consider the claims, but, rather, that it would do so because a state appellate court heard the case on its merits. 440 U.S. at 452-56, 99 S.Ct. at 1294-95. Justices Powell and Rehnquist pointed out that the Constitution does not require review of such a claim. In fact, “requiring that the claim be presented only by those who have taken the stand will prevent defendants with no real intention of testifying from creating artificial constitutional challenges to their convictions.” Id. at 462, 99 S.Ct. at 1299 (Powell, J., concurring) (emphasis added). Since New Jersey chose
A number of other courts have ruled on the specific issue I address. The First Circuit does not require advance rulings on rule 609 questions, but it certainly encourages them. United States v. Oakes, 565 F.2d 170, 171 (1st Cir. 1977); see United States v. Hickey, 596 F.2d 1082, 1087 (1st Cir.), cert. denied, --- U.S. ---, 100 S.Ct. 107, 62 L.Ed.2d 70 (1979). Cf. United States v. Cavender, 578 F.2d 528, 530 & n.5 (4th Cir. 1978) (allows pretrial ruling on motion to exclude impeachment with prior conviction over ten years old under
There are some procedural problems inherent in the pretrial hearing device, especially where impeachment by a non-crimen falsi is being considered, that I have not touched upon but are worthy of mention. First, what kind of hearing is the court to hold? If the defendant does not take the stand to proffer what he intends to tell the jury later in his own defense, then how is the prosecutor to carry his burden of proving “that the probative value of admitting [the prior conviction] outwеighs its prejudicial effect to the defendant“?
Finally, suppose the trial judge, at the pretrial hearing, сoncludes that the defendant is not subject to prior crimes impeachment or that the impeachment would be too prejudicial to be admissible under rule 609(a)(1). Armed with this favorable ruling, the defendant elects to testify in the defense‘s case-in-chief. By the time cross-examination arrives, it is apparent that the defendant is clearly open to impeachment by a non-crimen falsi and any prejudice is outweighed by the probative value of the impeachment. If thе trial judge reverses himself and allows the impeachment, the defendant should be expected to claim something akin to “entrapment.” The favorable pretrial ruling, he might argue, induced him to testify; moreover, it dictated an entire trial strategy he would, otherwise, not have followed.
TUTTLE, Circuit Judge, dissenting:
I respectfully dissent from the majority‘s establishment of an absolute rule requiring admission of a prior crimen falsi conviction. I would hold that a distriсt court judge may exclude evidence of a prior conviction involving dishonesty when the prejudicial effect of the evidence is overwhelming.
In formulating the Federal Rules of Evidence, Congress authorized introduction of two types of prior convictions for impeachment purposes—felony convictions and convictions involving dishonesty or false statement. After lengthy debate, Congress chose to treat these two classes of convictions differently, aсcording greater value to convictions involving dishonesty. Under
I do not believe that application of
Because of the Congressional recognition, embodied in rule 609(a)(2), of the great probative value of a crimen falsi conviction, it is unlikely that a defendant would often be able to make the necessary showing to require exclusion. Nonetheless, the purpose of rule 403 was to provide judges some flexibility in cases where the possibility of prejudice is extremely great, and I feel that this case comes within that limited group of cases. The defendant‘s prior conviction for mail fraud was offered to impeach the defendant‘s credibility as a witness; it was, of course, not relevant as substantive evidence to prove the defendant‘s guilt in the offense at trial. Despite the undeniable relevance of the prior conviction to the issue of credibility, the prejudice inherent in admission of this conviction is so great that its use should have been limited. It would be hard to imagine evidence more prejudicial, in a trial for mail fraud, then the defendant‘s prior conviction for mail fraud. I would suggest that the probative value of a conviction involving dishonesty is substantially outweighed by the danger of unfair prejudice to the defendant, when the prior con-
Notes
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. It is conceivable, albeit highly unlikely, that the credibility of the defendant‘s testimony will not be in issue; hence, the court may disallow altogether any prior crimes impeachment, even with a crimen falsi. Or, if impeachment by a non-crimen falsi is sought, the court may well conclude that the defendant‘s testimony is so incredible and, in light of the overwhelming evidence against him, will, clearly, be disregarded by the jury, that to impeach the defendant with a prior offense would serve no goal other than to convince the jury that he is a bad person.
For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudiсial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.