Federal Evidence Review

In felon in possession of a weapon prosecution, admission of evidence regarding defendant’s prior felony, even though stipulated by the parties, was not erroneous because the prior felony involved an intent to defraud, bearing on the defendant’s propensity to testify truthfully, and so was admissible under FRE 609(a) for purposes of impeachment of defendant’s testimony that he did not knowingly possess the charged gun found in his constructive possession, in United States v. Collier, 527 F.3d 695 (8th Cir. June 6, 2008) (No. 07-1457)

FRE 403 is a wide-ranging rule of evidence that applies to almost all provisions of the FRE. In an interesting case in 2008, the Eighth Circuit explored one of the few limits to FRE 403's operation. The Circuit considered the relation between the policies underlying FRE 609 impeachment and FRE 403. The circuit explained why impeaching evidence under FRE 609(a) is automatically admissible under FRE 403, regardless of how unduly prejudicial the impeaching evidence might be.

In the case, defendant Collier, a truck driver, was arrested in South Dakota after a search of his truck disclosed a gun in the truck’s sleeper berth. Collier had previously been convicted of credit card fraud, a felony, and was prohibited from possessing the weapon. At the time of his arrest he made statements admitting to having the gun as a means of protection. As trial approached the defendant changed his story. He now contended that his prior statements were lies. He filed a motion in limine “to exclude prior convictions except for the predicate felony of the sale or receipt of an access card to defraud and to prohibit evidence about the nature of the predicate felony.” Collier, 527 F.3d at 698.

The defense and the prosecution had stipulated to the fact of his conviction for the predicate offense and so the defendant argued that “the jury would already know of it and could take this into account in assessing his credibility” and that letting the evidence of the details of the prior conviction would unfairly prejudice him “without adding anything of probative value.” Collier, 527 F.3d at 698.

The trial court denied the motion because “both the fact and nature of his predicate felony for credit card fraud would be admissible to impeach.” It was a crime of dishonesty and bore on his credibility. The defendant testified at trial, claiming that he had not seen the gun before and that in a typical month “up to forty different workers have access” to the place where the gun was found. Collier, 527 F.3d at 698. The evidence about his prior conviction for credit card fraud was admitted and the defendant was convicted. He appealed.

The circuit affirmed the admission of the prior felony evidence. The circuit noted it was admissible for impeachment purposes under both FRE 609(a)(1) or FRE 609(a)(2). Under FRE 609(a)(1), the evidence was admissible if it is was [1] a felony and [2] its probative value outweighs its prejudicial effect. The circuit explained that the defendant's prior credit card felony had a significant probative value as to the defendant’s credibility – specifically his contention that he never saw the gun before the police discovered it. The prejudicial value was not great because, as summarized by the district judge, “as felonies go[,] it is not a very serious felony” and was not “particularly prejudicial.” Collier, 527 F.3d at 699 (quoting the trial judge)).

Under FRE 609(a)(2) the defendant’s credit card conviction would also be admissible. That rule admitted evidence of crimes of dishonesty regardless of the punishment. The defendant’s prior crime of credit card fraud included an element requiring an intent to defraud which by definition involves some element of deceit, which would bear upon one’s propensity to testify truthfully.” “by definition involves some element of deceit, which would bear upon one's propensity to testify truthfully. Because it had “a statutory element requiring proof of deceit” it could be considered an act of dishonesty under FRE 609(a)(2).

The circuit dismissed the defendant’s contention that the trial court could exclude the prior crime if it failed to meet the test in FRE 403 and that its probative value was outweighed by its prejudicial impact. FRE 609(a)(2) was exempt from the operation of FRE 403. As explained by the circuit: “Evidence of a conviction requiring proof or admission of an act of dishonesty or false statement is automatically admissible and not subject to Rule 403 balancing by the court.” Collier, 527 F.3d at 700 (citing Green v. Bock Laundry Mach. Co., 490 U.S. 504, 525-26 (1989) (“With regard to subpart (2) [of Rule 609(a) ], which governs impeachment by crimen falsi convictions, it is widely agreed that this imperative, coupled with the absence of any balancing language, bars exercise of judicial discretion pursuant to Rule 403.”) (superceded on other grounds by 1990 Amendment to FRE 609(a); Jones v. Bd. of Police Comm'rs, 844 F.2d 500, 505 (8th Cir. 1988) (“Under subsection (2) [of Rule 609(a) ], a conviction (felony or misdemeanor) involving dishonesty or false statement is, subject to the ten-year limit imposed by Rule 609(b), always admissible; there is no balancing to be done.”))

The circuit also noted, without directly stating so, that the defendant appeared to open the door to prosecution questions about the nature of the prior offense. The defendant had tried to “minimize culpability during direct examination by calling his felony a “petty theft, or grand larceny.” “When an accused, on direct examination, attempts to minimize his guilt or culpability,” noted the circuit, it permitted “a more detailed cross examination…. Here, the scope of the cross examination concerning Collier's predicate conviction did not go beyond facts Collier testified to during his direct examination.” Collier, 527 F.3d at 700 (citing United States v. Headbird, 461 F.3d 1074, 1078 (8th Cir. 2006) (“Because of Headbird's denial, the district court was within its discretion to allow more specific questions” regarding the defendant’s prior crimes))

As noted in Collier, impeaching evidence is automatically admissible under FRE 609(a(2), regardless of how unduly prejudicial the impeaching evidence of a prior conviction involving dishonesty or a false statement may be. See Security and Exchange Comm'n v. Sargent, 229 F.3d 68, 79-80 (1st Cir. 2000)(“Rule 609(a)(2) simply does not allow for any judicial discretion on this point” of admitting prior conviction involving dishonesty regardless of prejudicial nature).