“Collateral Details” Of The Defendant’s Prior Conviction Results In Reversal

Ninth Circuit reverses conviction based on admission of the “collateral details” of the defendant’s prior conviction during cross-examination on the defendant’s character for truthfulness; noting a circuit consensus that specific act evidence proffered under either FRE 608(b) or FRE 609 should not include evidence of the collateral details (evidence beyond the general nature of the prior conviction and its punishment) of conduct that resulted in the defendant’s prior criminal conviction, in United States v. Osazuwa, 564 F.3d 1169 (9th Cir. May 7, 2009) (No. 08-50244)

Reconciling the implications of FRE 608(b) and FRE 609 (a) can present a challenge for the trial judge. FRE 608(b) permits the admission of evidence of “[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness.” However, the rule explicitly excludes from this evidence of “conviction of crime as provided in Rule 609.” FRE 609 evidence “may not be proved by extrinsic evidence,” but “in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness....” The Ninth Circuit recently considered the interplay of FRE 608 and FRE 609, concluding that FRE 608 “applies only to specific instances of conduct that were not the basis of a [prior] criminal conviction,” because “[e]vidence relating to a conviction … is treated solely under Rule 609.” Osazuwa, 564 F.3d at 1173. The case also addressed whether “collateral details” of a conviction may be admitted against a defendant.

Osazuwa Trial And Appeal

In the case, defendant Osazuwa was prosecuted for assaulting a prison guard while jailed for failing to pay restitution based on a prior bank fraud conviction. The only witnesses to the assault were the defendant and the guard. Not surprisingly, they offered different versions of the incident. During cross-examination of the defendant, the prosecutor sought to ask questions pertaining to the defendant’s veracity in order to undermine the defendant’s account of the incident.

This impeachment evidence concerned the “facts underlying” the defendant’s prior conviction for bank fraud, such as who his victim was, what he gained in the bank fraud, how the fraud was perpetrated, the defendant’s maintenance of a “fake identification in another person’s name” to perpetrate the bank fraud. The trial court gave limiting instructions to the jury about the “proper use of impeachment evidence” and the government “did not mention bank fraud in its closing argument.” Osazuwa, 564 F.3d at 1173. The jury convicted the defendant. On appeal, the defendant argued that the trial judge erred in allowing the prosecutor to elicit the facts underlying his bank fraud conviction.

The circuit reversed and remanded the case because “evidence relating to a prior conviction is not admissible under Rule 608. Evidence of a prior conviction of a crime that involves dishonesty may be admissible under Rule 609. But evidence admissible under Rule 609 for impeachment purposes may not include collateral details of the crime of conviction.” Osazuwa, 564 F.3d at 1177. As explained by the circuit, “unfairness ... would result if evidence relating to a conviction is prohibited by Rule 609 but admitted through the ‘back door’ of Rule 608.” Osazuwa, 564 F.3d at 1174 (citing Donald H. Ziegler, Harmonizing Rules 609 and 608(b) of the Federal Rules of Evidence, 2003 Utah L. Rev. 635, 677 (2003) (“[I]t plainly seems unfair to forbid impeachment under Rule 609[ ] but allow the defendant to be questioned about the underlying acts under Rule 608(b).”)).

FRE 608(b)

Regarding the application of FRE 608, the Ninth Circuit resolved to “[e]cho[ ] the observations of the Fifth, Eighth, and Tenth Circuits … that Rule 608(b) permits impeachment only by specific acts that have not resulted in a criminal conviction.” In support of this position, the circuit specifically cited the advisory committee notes to FRE 608:

“The notes provide that ‘[p]articular instances of conduct, though not the subject of criminal conviction, may be inquired into on cross-examination’ and ‘[c]onviction of crime as a technique of impeachment is treated in detail in Rule 609, and here is merely recognized as an exception to the general rule excluding evidence of specific incidents for impeachment purposes.’ Fed. R. Evid. 608 advisory committee’s notes (1972). Those comments suggest that evidence relating to convictions falls within the exclusive purview of Rule 609.”
Osazuwa, 564 F.3d at 1174.

The circuit noted that “[s]everal of our sister circuits have also adopted” a construction of the rule that was in conformity with the advisory committee note. The circuit cited in particular the following cases:

  • Fifth Circuit: United States v. Parker, 133 F.3d 322, 327 (5th Cir. 1998) (“Prior bad acts that have not resulted in a conviction are admissible under [Rule] 608(b) if relevant to the witness’s character for truthfulness or untruthfulness.”)
  • Eighth Circuit: United States v. Lightfoot, 483 F.3d 876, 881 (8th Cir.) (“Rule 608(b) ... confers upon district courts discretion to permit witness-credibility questioning on specific bad acts not resulting in a felony conviction.”), cert. denied, 128 S.Ct. 682 (2007)
  • Tenth Circuit: Mason v. Texaco, Inc., 948 F.2d 1546, 1556 (10th Cir. 1991) (“Under [Rule] 608(b), a defendant may impeach a Government witness by cross-examining him about specific instances of conduct not resulting in conviction if such conduct is probative of the witness’ character for truthfulness or untruthfulness.” (internal quotation marks omitted)

FRE 609

Having resolved that the trial court erred in admitting prior conviction evidence under FRE 608, the circuit then examined whether the collateral evidence was admissible under FRE 609. The circuit concluded that it was not. There was no dispute in the case that the defendant’s prior conviction of bank fraud was an act of dishonesty, so that FRE 609(a)(2) was applicable. However, in applying that rule, a court was limited in admitting for impeachment purposes evidence of a prior crime. That evidence could not “include collateral details and circumstances attendant upon the conviction.” Osazuwa, 564 F.3d at 1175 (quoting United States v. Sine, 493 F.3d 1021, 1036 n.14 (9th Cir. 2007) (assuming that if FRE 609 applied to the defendant’s criminal contempt citation, the attempt by the government to impeach the defendant with evidence regarding the citation “went far beyond the mere fact” that the court found him guilty of criminal contempt and so was in error). In particular, in using the prior conviction under FRE 609(a)(2), the cross-examination was limited to the crime, but not the “the particular facts of [the defendant’s] previous offenses.” Osazuwa, 564 F.3d at 1175 (quoting United States v. Gordon, 780 F.2d 1165, 1176 (5th Cir. 1986) (under FRE 609, limiting cross-examination to “the number of convictions, the nature of the crimes and the dates and times of the convictions”)).

The circuit explained the reason for the limited scope of the cross-examination was a result of “the unfair prejudice and confusion that could result from eliciting details of the prior crime.” Osazuwa, 564 F.3d at 1175 (citing United States v. Robinson, 8 F.3d 398, 410 (7th Cir. 1993) (the impeaching party is not “entitled to harp on the witness’s crime, parade it lovingly before the jury in all its gruesome details, and thereby shift the focus of attention from the events at issue in the present case to the witness’s conviction in a previous case”) (internal quotations marks omitted)).

No Open Door

Because the error was not harmless, the circuit reversed and remanded the case for a new trial. The circuit also rejected the contention that the defendant had “opened the door” to the admission of the collateral details of his prior bank fraud conviction. The circuit found that the defendant had answered the prosecutor’s question about the length of his incarceration accurately and did not seek to explain away or minimize his conviction. This truthful response would not open the door to collateral details of the crime because a truthful response did not serve to open the door to that evidence. Osazuwa, 564 F.3d at 1176-77.

Federal Rules of Evidence