Federal Evidence Review

Fourth Circuit vacated and remanded a conviction for possession of heroin based on the ineffective assistance of defense counsel who failed to effectively challenge admission of defendant’s prior convictions for purposes of impeaching his credibility as a witness because the convictions had been reversed, violating implications of FRE 609(e) on admission of evidence of a conviction under appeal, in United States v. Russell, 221 F.3d 615 (4th Cir. 2000) (No. 99-4117)

Under FRE 609(e), for purposes of attacking a witness's character for truthfulness, the “pendency of an appeal” from a defendant's conviction “does not render evidence of a conviction inadmissible.” How does this rule operate once the appeal is decided? The Fourth Circuit examined this problem and decided that “[a]lthough the pendency of an appeal does not preclude use of such a conviction for impeachment purposes ... it is elementary that once a conviction has been reversed, it cannot be used to impeach the accused.” Russell, 221 F.3d at 620 n.6.

In the case, defendant Russell was convicted of possession of heroin with intent to distribute based on discovery of heroin bags hidden in the yard of a dormitory in which the defendant had been housed prior to, but not at the time of, the discovery. Fingerprint analysis of the bags disclosed ten identifiable prints that could be matched with the defendant. The defendant was convicted and he sought a new trial based in part on the trial court admitting his prior convictions for the purpose of impeaching his credibility. The defendant contended that his prior convictions had been reversed. The trial court denied his motion for a new trial.

On appeal, the Fourth Circuit provided relief finding that the defendant has received ineffective assistance of counsel based on his counsel’s failure to properly investigate his claim of reversal. As an indication of counsel’s ineffectiveness, the circuit examined the process by which the trial court admitted evidence of defendant’s prior convictions. At trial, the defendant presented evidence that could explain the presence of his fingerprints on the heroin bags found by authorities. According to the defendant's testimony, he “did not dispute that his fingerprints were on the heroin packets.... Instead, Russell asserted that his fingerprints had been impressed on the paper packets innocently, before someone else used the paper to package the heroin.” Russell, 221 F.3d at 618.

At trial, the defendant “explained that he often made picture frames and artwork to trade with other inmates from materials similar to the paper used to package the heroin. In order to make these frames and artwork, Russell testified that he would tear ‘a hundred sheets’ of paper into small squares, and then fold and link the different pieces together to form a frame. Russell typically made these frames in a room open to other residents of Dormitory 22. When he finished, he would simply discard the unused pieces of paper in a nearby trash can.” Russell, 221 F.3d at 619.

The circuit found that but for the ineffectiveness of defense counsel’s performance, had “the jury had found Russell's explanation plausible and had credited his testimony, the Government's case would have undoubtedly failed. However, Russell's credibility was all but destroyed when he was mistakenly impeached on the basis of three felony convictions-two of which had been vacated before trial.” Russell, 221 F.3d at 619.

As explained by the circuit:

“Prior to trial, the Government filed a motion in limine seeking to admit evidence of three prior felony convictions, for impeachment purposes.… In support of the pre-trial motion, the United States Attorney provided both Russell's counsel and the trial judge with records supporting and confirming the validity of these convictions. Russell's counsel did not contest the validity of the convictions nor did he make any effort to challenge their admissibility. [T]he court … accepted the Government's representation on the validity of the convictions, and authorized their use for impeachment of Russell's credibility as a witness.”

Russell, 221 F.3d at 619-20 (footnotes omitted).

The evidence was admitted under FRE 609(a)(1) which allows the admission for impeachment purposes of evidence of a prior felony conviction “if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.” However, the circuit cautioned:

“Although the pendency of an appeal does not preclude use of such a conviction for impeachment purposes, see Fed. R. Evid. 609(e), it is elementary that once a conviction has been reversed, it cannot be used to impeach the accused. See United States v. Empire Packing Co., 174 F.2d 16, 20 (7th Cir. 1949) (“Unless and until the judgment of the trial court is reversed, the defendant stands convicted and may properly be questioned regarding said conviction solely for the purpose of testing credibility.”) (emphasis added).”

Russell, 221 F.3d at 620.

There was no dispute that the defendant told his attorney “on several occasions prior to trial that his District of Columbia convictions had been ‘overturned.’” However counsel apparently failed to independently investigate Russell’s claim and “chose to rely on the representations of the Government. Additionally, counsel instructed Russell that he must admit to and acknowledge three felony convictions in his trial testimony, and Russell followed his counsel's advice. Indeed, Russell's counsel himself introduced the two tainted convictions during Russell's direct examination.” Apparently after the trial, the defendant’s probation officer was able to confirm that two of the defendant’s prior felony convictions “had been vacated and were invalid at the time of trial.” Russell, 221 F.3d at 620.

The circuit vacated and remanded the case because of counsel’s ineffective assistance in violation of the Sixth Amendment. As explained by the circuit, counsel’s failure to check the status of the defendant's prior convictions that were going to be used to impeach the defendant’s credibility was deficient. Once the defendant told the attorney that the convictions had been “overturned” it was ineffective assistance to fail to challenge the admission of the prior crimes evidence for impeachment purposes. Because the evidence of the two convictions was not admissible under FRE 609(e), and in light of the ease with which counsel could have checked court records to verify that the convictions had been vacated, and because the evidence supporting government's case was otherwise “thin,” the circuit found that the error in applying FRE 609 was not harmless because under the circumstances, the defendant's credibility was “paramount in the jury's deliberations” and was “irrevocably undermined by his improper impeachment with the two vacated convictions.” Russell, 221 F.3d at 622.

FRE 609(e) is not frequently an issue of controversy. As shown in Russell, the focus more often is on application of FRE 609(a) as to whether a conviction is a felony or whether its probative value outweighs its prejudicial effect. However, having erred in applying FRE 609(a), the application of FRE 609(e) cannot justify application of the impeachment evidence. As the Fourth Circuit suggests, FRE 609(e) does not directly state this, but “it is elementary that once a conviction has been reversed, it cannot be used to impeach the accused.” Russell, 221 F.3d at 620 n.6.