Federal Evidence Review

Conviction was reversed after two state misdemeanor convictions were erroneously admitted as a felony conviction under FRE 803(22); admitting the misdemeanor convictions as a public record under FRE 803(8) would “trump the more specific limitation on the admission of judgments of conviction” under FRE 803(22), in United States v. Nguyen, 465 F.3d 1128 (9th Cir. 2006) (No. 06-30011)

The prior Ninth Circuit case sought to reconcile two potentially conflicting hearsay exceptions under FRE 803. The circuit grappled with a trial court’s discretion under FRE 803(8)(C) (public records) to admit any “factual findings” that were “made pursuant to authority granted by law.” Another hearsay exception, FRE 803(22) (judgment of previous conviction), expressly precludes use of a guilty judgment if it was the result of pleas of nolo contendere and/or was “punishable” as a misdemeanor. What happens when a factual finding offered as a public record under FRE 803(8)(C) involves a misdemeanor conviction or was a result of a nolo contendere plea, which are precluded under FRE 803(22)?

In Nguyen, the Ninth Circuit considered a case in which the defendant’s misdemeanor conviction was the result of a plea of nolo contendere. Accordingly, it did not satisfy the requirements of FRE 803(22), but could it still be admitted under FRE 803(8) as a public record? The defendant Nguyen was a Vietnamese citizen who immigrated to the United States as a teenager. When he became an adult, he was convicted of misdemeanor drug possession and the federal government ordered him removed to Vietnam. However, the lack of a repatriation agreement with Vietnam precluded the government from the removal action. Accordingly, Immigration and Customs Enforcement (ICE) officials released him under an order of supervision. See 8 U.S.C. § 1231(a)(3).

This order “state[d] that Nguyen is to ‘not commit any crimes while on this Order of Supervision.’” Nguyen, 465 F.3d at 1129. Two years later the defendant suffered two misdemeanor Alaska convictions (for criminal mischief and assault in the fourth degree). The federal government prosecuted the defendant for violation of his ICE supervision terms. The only evidence presented to the jury of his violation of the supervision terms was the certified copies of the state court misdemeanor judgments, entered upon his nolo contendere plea. Upon conviction, the defendant appealed claiming the convictions were inadmissible hearsay and erroneously introduced under FRE 803(22).

The circuit agreed and reversed the conviction. The circuit based its action on three principles:

Elements Of Charged Crime:

First, the circuit noted the elements necessary for the defendant’s conviction: “the Government had to prove that he had committed one or more crimes. That is not quite the same as proving that he had been convicted on criminal charges.” In particular, the government’s proof “consisted solely of the two certified judgments of conviction. The judgments were offered to provide the jury with a basis to infer that Nguyen actually committed the underlying crimes, in violation of his order of supervision.” Such a inference was not allowed under the law because “a plea of nolo contendere … [is] not an admission of factual guilt. It merely allows the defendant so pleading to waive a trial and to authorize the court to treat him as if he were guilty.” Nguyen, 465 F.3d at 1130 (citing North Carolina v. Alford, 400 U.S. 25, 36-37 (1970) (“An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting a crime.”)).

FRE 803(22) (Judgment Of Previous Conviction):

Second, the circuit noted that FRE 803(22) would not support the admission of the defendant’s misdemeanor convictions. This result was clear because the rule “allows judgments of felony convictions resulting from guilty pleas to be admitted into evidence but not convictions resulting from nolo contendere pleas and not misdemeanor convictions.” Nguyen, 465 F.3d at 1131.

FRE 803(8) (Public Records):

Third, while FRE 803(8) “exempts from the hearsay rule public records and reports. That more general reference in Rule 803(8) cannot trump the more specific limitation on the admission of judgments of conviction. All judgments of conviction may be said to be public records, but the exemption under Rule 803(8) cannot be deemed to cover such judgments because it would make Rule 803(22) superfluous.” Nguyen, 465 F.3d at 1132 (citing United States v. Weiland, 420 F.3d 1062, 1074 (9th Cir. 2005) (evidence cannot be admitted under a general evidentiary rule in order to circumvent a more specific rule prohibiting admission)).

Bottom Line

The circuit’s bottom line was that:

“misdemeanor judgments of conviction may be admissible under Rule 803(8) to prove some other element of a subsequently charged crime, but they are not admissible to prove that the defendant actually committed the underlying crimes charged. Without this limitation to its reach in place, Rule 803(8) would swallow whole Rule 803(22)'s prohibition against the admission of misdemeanor convictions resulting from pleas of nolo contendere. Such a result could not have been intended by the drafters of the Federal Rules of Evidence. In short, there was no basis under the Federal Rules of Evidence for the district court to have admitted the certified copies of Nguyen's misdemeanor nolo contendere convictions.”

Nguyen, 465 F.3d at 1132 (distinguishing this result from United States v. Loera, 923 F.2d 725, 729-30 (9th Cir. 1991) (a defendant's prior drunk driving misdemeanor judgments of conviction were admitted for the limited purpose of establishing the element of malice required for second degree murder, i.e., that the defendant had grounds to be aware of the risk that drunk driving presented to others) and United States v. Wilson, 690 F.2d 1267, 1275 n.2 (9th Cir. 1982) (On defendant's trial on escape charges, his prior misdemeanor judgment of conviction for counterfeiting was admitted to establish that he had been incarcerated at the time that he was alleged to have escaped)) in which the “misdemeanor judgments of conviction were not admitted for the purpose of proving that the defendant committed the underlying crimes charged therein. Rather, the convictions tended to prove some other element of subsequent crimes charged.”).

The Nguyen circuit suggested that when the prior conviction is being used, not to prove that the defendant committed the underlying conduct, but to prove some other fact, the evidence is admissible under FRE 803(8)(C). A similar contrast was drawn by the Tenth Circuit in Herrick v. Garvey, 298 F.3d 1184 (10th Cir. 2002), in a civil case concerning whether a corporation had transferred its aircraft business to another. The court considered the prior finding of fact properly excluded because FRE 803(8)(C) applied only to “investigations made pursuant to authority granted by law” and the prior judge is not an investigator and that otherwise FRE 803(22) would be rendered redundant.