Reversing Exclusion Of Bribery And Obstruction Convictions For Impeachment Under FRE 609(a)(2)

Fifth Circuit considers the government’s interlocutory appeal of the exclusion of bribery and obstruction of justice convictions under FRE 609(a)(2); once the requirements of FRE 609(a)(2) were met, the convictions were admissible automatically and were not subject to balancing for unfair prejudice under FRE 403, in United States v. Jefferson, _ F.3d _ (5th Cir. Oct. 6, 2010) (No. 10-30941)

FRE 609(a)(2) provides for impeachment of a conviction involving “dishonesty or false statement” against “any witness.” Under FRE 609(a)(2), a qualifying conviction involving “dishonesty or false statement” is automatically admissible. Some courts have applied a “narrow” construction to the “dishonesty and false statement” phrase because of its mandatory application to qualifying convictions. The Fifth Circuit recently considered the application of this rule on an interlocutory appeal brought by the government.

In the case, the defendants were charged with conspiring to violate the Racketeer Influenced and Corrupt Organizations (RICO) Act. One of the defendants was convicted of two counts of bribery, under 18 U.S.C. § 666(a)(2), and two counts of obstruction of justice, under 18 U.S.C. § 1512(b)(3). Before trial, the government moved in limine to admit the prior convictions of the co-defendant as intrinsic to the charged conspiracy. Initially, the trial court ruled that the prior convictions were admissible “for purposes of cross-examination if the defendant testifies.”

However, when the defense later suggested it would be inappropriate for the prospective jury to learn about the do-defendant’s convictions, the trial court ruled that the convictions were “inadmissible.” The trial court denied the government’s motion to reconsider or continue the jury trial for time to consider an appeal. For days before the scheduled trial, the government filed an interlocutory appeal under 18 U.S.C. § 3731. The trial court then reconsidered its ruling and clarified that “§ 3731 does not apply to an evidentiary ruling concerning a matter that is not an element of the charged offense” and added that “the Government's appeal in this case does not require this Court to relinquish jurisdiction.” Jefferson, _ F.3d at _. The trial court then stayed its proceedings pending the appeal. The Fifth Circuit granted the government’s emergency motion to stay the criminal trial proceedings.

Interlocutory Appeal

The Fifth Circuit reversed the exclusion of evidence. Preliminarily, the circuit concluded that the interlocutory appeal was properly taken since the requirements of Section 3731 had been established. See, e.g., United States v. Helstoski, 442 U.S. 477, 487 n. 6 (1979) (noting requirements include “an order of a District Court excluding evidence; a United States Attorney filed the proper certification; and the appeal was taken within 30 days”). The Fifth Circuit noted that other circuits were “in accord that the United States Attorney's certification is sufficient to establish appellate jurisdiction,” including:

  • United States v. W.R. Grace, 526 F.3d 499, 506 (9th Cir. 2008) (en banc) (“[W]e now hold that a certification by a United States Attorney (personally, not by an Assistant United States Attorney) that the appeal is not taken for the purpose of delay and that the evidence is substantial proof of a fact material in the proceeding is sufficient for purposes of establishing our jurisdiction under § 3731.”)
  • United States v. Centracchio, 236 F.3d 812, 813 (7th Cir. 2001) (“We therefore treat as conclusive of our jurisdiction over a [§ 3731] Paragraph 2 appeal the submission of the [United States Attorney's] certification required by the statute.”)
  • United States v. Johnson, 228 F.3d 920, 924 (8th Cir. 2000) (“The language of § 3731 implies that mere certification is required to demonstrate materiality.”)
  • United States v. Juvenile Male No. 1, 86 F.3d 1314, 1326 (4th Cir. 1996) (Wilkinson, J., concurring) (“[C]ertification by the U.S. Attorney under 18 U.S.C. § 3731 that an appeal from an adverse suppression ruling is not taken for purposes of delay and involves evidence material to the proceedings” is an “executive determination [that has been] deemed outside the scope of judicial review”)
  • In re Grand Jury Investigation, 599 F.2d 1224, 1226 (3d Cir. 1979) (“Pursuant to 18 U.S.C. § 3731, the United States Attorney has certified that this appeal ‘is not taken for the purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.’ The district court having received this certification, we are not required by section 3731 to evaluate independently the substantiality or the materiality of the contested material.”)

The Fifth Circuit noted that jurisdiction was properly invoked:

This is not a close case. The statute is clear-the United States Attorney's certification that the appeal is not taken for purpose of delay and that the evidence excluded by the district court's order is a substantial proof of a fact material in the proceeding is the final word on materiality for the purposes of determining whether we have jurisdiction to hear the appeal. Neither the district court nor this court can hold otherwise.
Jefferson, _ F.3d at _.

Application Of FRE 609(a)(2)

The Fifth Circuit considered whether the offenses of conviction involved crimes of dishonesty. First, the bribery convictions certainly did. Jefferson, _ F.3d at _ (citing United States v. Williams, 642 F.2d 136, 140 (5th Cir. 1981) (“[B]ribery is a crimen falsi in that it involves dishonesty ․ Hence, it is automatically admissible [under] Fed. R. Evid. 609(a)(2).”)).

Second, on the obstruction of justice, under 18 U.S.C. § 1512(b)(3), since the “deceitful nature of the crime [wa]s not apparent from the statute and the face of the judgment,” the indictment was considered to determine whether “the factfinder had to find ... an act of dishonesty or false statement in order for the witness to have been convicted.” FRE 609 ACN (2006 amendments note). In reviewing the indictment, the government was required to prove that the defendant “knowingly and corruptly attempted to persuade another to lie to the authorities.” Consequently, the circuit concluded “that the indictment shows that ‘the factfinder had to find ... an act of dishonesty or false statement in order for [Jefferson] to have been convicted.’” Jefferson, _ F.3d at _ (quoting FRE 609 ACN (2006 amendments note)). Therefore, “evidence of [co-defendant] Jefferson's obstruction of justice convictions must be admitted for impeachment purposes under Rule 609(a)(2) should he choose to testify.” Jefferson, _ F.3d at _. The trial court erred in avoiding the application of FRE 609(a)(2). Once the requirement of the rule was met, there was no discretion on whether to admit the prior convictions for impeachment. Jefferson, _ F.3d at _ (quoting FRE 609 ACN (“The admission of prior convictions involving dishonesty and false statement is not within the discretion of the Court.”)).

FRE 403 Inapplicable

Finally, the Fifth Circuit rejected the defense claim that the convictions were subject to balance for unfair prejudice, under FRE 403. As the circuit noted, “Defendants' uncontroversial assertion that convictions admitted under Rule 609(a)(1) are subject to balancing by the district court under Rule 403 is irrelevant.” Jefferson, _ F.3d at _ (also citing United States v. Harper, 527 F.3d 396, 408 (5th Cir. 2008) (“Crimes qualifying for admission under Rule 609(a)(2) are not subject to Rule 403 balancing and must be admitted.”); Coursey v. Broadhurst, 888 F.2d 338, 341-42 (5th Cir. 1989) (Rule 609(a)(2) contains “mandatory language [and] requires that a trial court admit evidence of such crimes to allow a party to impeach an adversary witness's credibility.”)).

Normally, FRE 403 applies to most evidence rules. The Jefferson case shows a rare instance in which FRE 403 balancing does not apply where other requirements for admitting the evidence are satisfied.

Federal Rules of Evidence