Federal Evidence Review

In a pyramid scheme case, the First Circuit affirms the limitation of defense cross-examination of a prosecution witness about the nature of the charges against the witness currently pending in state court; trial judge properly allowed defense to raise only the probative aspect of the extrinsic evidence (about the possible motivation of the witness to ingratiate himself with the government by cooperating in the pyramid scheme prosecution), but excluded inquiry into the specific nature of the state charges (alleged “illegal sexual contact with his nephew, a minor” which was unfairly prejudicial), in United States v. Bunchan, 580 F.3d 66 (1st Cir. Sept. 2, 2009) (No. 08-1022)

FRE 608(b) explicitly provides the trial judge with “discretion” to permit cross-examination into specific instances of a witness’s conduct when used for the purpose of attacking or supporting the witness’s character for truthfulness. Where this evidence is based on the witness’s conviction of a crime, admissibility is guided by FRE 609. Where the evidence includes a criminal charge that has not yet been resolved, what standard guides admissibility?

In a recent case, the First Circuit confirms that non-conviction evidence admitted for purposes of impeachment under FRE 608(b) must satisfy the requirements of FRE 403 – that its probative value not be substantially outweighed by the danger of unfair prejudice. This confirms the observation of the ACN to FRE 608(b) (2003) that: “By limiting the application of the Rule to proof of a witness’ character for truthfulness … the admissibility of extrinsic evidence offered for other grounds of impeachment (such as contradiction, prior inconsistent statement, bias and mental capacity)” is guided by FRE 402 (relevance) and FRE 403 (exclusion of relevant evidence on grounds of prejudice).

In the case, defendant Bunchan was convicted by a jury for conspiracy, mail fraud and money laundering in a pyramid scheme through which he stole nearly $20 million from over 500 persons of Cambodian origin now living in the U.S. At his trial, the government presented particularly damaging testimony by a witness, Christian Rochon, whom the defendant asked to be the “American face” for the pyramid scheme. Rochon was made “President” of the scheme, his picture was used in all promotional material and “[c]orrespondence to investors often carried Rochon’s name and signature, although Rochon was instructed not to interact with investors.” Eventually the defendant’s pyramid scheme began to run out of steam and in 2005, the defendant sent investors letters attributing the problems to technological upgrades. Bunchan, 580 F.3d at 67.

At trial, the judge allowed the defense to examine Rochon about the pending state court assault charges against the witness “for indecent assault and battery of a child.” Specifically, “[t]he charges alleged that Rochon had engaged in illegal sexual contact with his nephew, a minor.” At trial the judge limited the defendant’s inquiry on this to questions that the charges were pending, but restricted any inquiry into the nature of the charges. As the judge explained: “I am going to let you ask the question about whether there is an assault charge pending.... I am not going to permit any reference to the nature of the assault. I find that far too prejudicial under Rule 403.” Bunchan, 580 F.3d at 71. After his conviction, the defendant appealed contending that the trial court erroneously restricted his impeachment of Rochon.

The First Circuit confirmed the conviction, finding no error in the trial court’s limitation of impeachment of the witness. As explained by the circuit:

“Rule 608(b) only permits inquiry into prior conduct if the conduct is probative of the witness’s character for truthfulness or untruthfulness. The district court’s determination that the nature of the sexual assault charges was not sufficiently probative of Rochon’s character for truthfulness to outweigh the serious danger of prejudicing the jury against him was well within its discretion.”

Bunchan, 580 F.3d at 71 (citing United States v. Span, 170 F.3d 798, 803 (7th Cir. 1999) (court did not abuse its discretion in restricting impeachment of government witness to inquiry about the existence of felony charges against him when restriction prohibited defendant from exposing that the charge was for first degree sexual assault of a child); United States v. Rabinowitz, 578 F.2d 910, 912 (2d Cir. 1978) (“We fail to see the logical relevance of the evidence sought to be adduced [-] prior acts of sodomy upon young children and consequent psychiatric treatment therefor [-] to the credibility of the witness. The evidence’s bearing on the witness’s propensity to tell the truth was simply too tenuous for us to hold that the district judge abused his discretion in excluding it.”)).

The First Circuit observed that FRE 608(b) required the trial judge to make an assessment under FRE 403 as to whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. The circuit noted that the trial judge successfully found a solution that properly struck the necessary balance of probative evidence and the possibility of unfair prejudice. The trial judge properly allowed the defendant “to raise the possibility that Rochon had a motive to ingratiate himself with the government by testifying against appellant. [Defendant’s attorney on cross-examination] inquired into whether Rochon perceived that he would receive lighter treatment on the state charges if he testified favorably for the government. Exposing the nature of the pending state charges was not necessary to establish the potential of bias resulting from Rochon’s expectations.” As a result, the trial judge’s restriction that the defendant could not bring out “the nature of the assault” -- that it was against a child was not erroneous. Bunchan, 580 F.3d at 71.

In noting the significance of FRE 403 in the application of FRE 608(b), the First Circuit reflects the approach taken by other circuits. See, e.g., United States v. Dowling, 855 F.2d 114, 119 (3d Cir. 1988) (no error in excluding defense examination of witness about civil suit to recover money lost in robbery, noting it was a matter of the trial judge’s discretion and that allowing the witness’s examination to delve into this other suit was “far too much outside of the issue”); United States v. Lynch, 800 F.2d 765, 770 (8th Cir. 1986) (while trial judge had discretion to permit or refuse questioning on extrinsic evidence, the judge could “reject otherwise proper questioning as being, for example, more prejudicial than probative”).