UNITED STATES OF AMERICA, :
Plaintiff :
WILLIAM DAVID Xxxxx, :
Defendant :
MOTION TO IMPEACH DEFENDANT WITH PRIOR CONVICTIONS
Defendant, William David Xxxxx, through undersigned counsel, respectfully moves this court for an order denying the government's request to impeach him should he testify at trial.
Federal Rule of Evidence 609 provides, inter alia, that "evidence that an accused has been convicted of ... a crime [punishable by death of imprisonment in excess of one year] shall be admitted if the court determines that the probative value of admitting this evidence outweighs the prejudicial effect of the accused." Federal Rule of Evidence 609 (a)(1). The Rule also provides that "evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment." Federal Rule of Evidence 609 (a)(2). Under Rule 609 (a)(1) "the prosecution must show that the probative value of a prior conviction outweighs the prejudice to the defendant." United States v. Lipscomb, 702 F.2d 1049 (D.C. Cir. 1983). In this case, the government cannot make the requisite showing with respect to Mr. Xxxxx's prior convictions. (1)
In United States v. Fearwell, 595 F.2d 771 (D.C. Cir. 1978), the D.C. Circuit admonished, "Rule 609 (a)(2) is to be construed narrowly; it is not carte blanche for admission on an undifferentiated basis of all previous convictions for purposes of impeachment; rather, precisely because it involves no discretion on the part of the trial court in the sense that all crimes meeting its stipulation of dishonesty or false statement must be used for impeachment purposes, Rule 609 (a)(2) must be confined ... to a 'narrow subset of crimes' - those that bear directly upon the accused's propensity to testify truthfully." Id. at 777, citing United States v. Smith, 551 F.2d 348 (D.C. Cir. 1976)(emphasis in original). In Mr. Xxxxx's case, his convictions have no bearing upon his propensity to testify truthfully.
In Smith the D.C. Circuit explained that "[b]y the phrase 'dishonesty and false statement' the [Congressional Conference Committee] means crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused' propensity to testify truthfully." 551 F.2d at 362, citing H.R. Conf. Rep. No. 9301597, 93d Cong. Sess. 9, reprinted in [1974] U.S. Code Cong. & Admin. News, pp. 7098, 7103. Further, the Smith court noted that even an offense that does not per se bear on credibility may be used to impeach if "the prosecutor has first demonstrated to the court the underlying facts which warrant the dishonesty or false statement description. Id. at 364. It is the government's burden to "produc[e] fact which demonstrat[e] that the particular conviction involved fraud or deceit." United States v. Glenn, 667 F.2d 1269, 1273 (9th Cir. 1982), citing United States v. Smith, 551 F.2d at 364.
In Mr. Xxxxx's case the government has produced no information suggesting that the offenses for which he has been convicted involved fraud or deceit. The D.C. Circuit has held that the government bears "the burden of proof in establishing the admissibility of [a] prior conviction[]." United States v. Crawford, 613 F.2d 1045, 1053 (D.C. Cir. 1979)(citations omitted). This court should not allow the government to impeach Mr. Xxxxx with his prior convictions absent an "inquiry into the nature and circumstances" of those convictions. Id. at 1053.
In particular, the government should also not be permitted to impeach Mr. Xxxxx with his 1996 possession of firearm conviction because it is so close in nature to the charges in this case. The fact that the offense involved in Mr. Xxxxx's 1996 conviction was a firearm offense, like the charge in this case, makes it far more prejudicial than if it was a conviction for a non-firearm offense. This Circuit in Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967), has recognized that "a special and even more difficult problem arises [where the government proposes to impeach the accused with a] conviction for the same or substantially the same conduct for which [he] is on trial." In Gordon, the Court also stated that in such situations "strong reasons arise for excluding [convictions] which are for the same crime because of the inevitable pressure on lay jurors to believe that 'if he did it before he probably did so this time.'" Id. The Gordon Court further advised that "as a general guide, those convictions which are for the same crime should be admitted sparingly..." Id. Therefore, in Mr. Xxxxx's case, there are no strong reasons allowing the government to impeach him with his 1996 possession of firearm conviction.
Moreover, the murder I & PPW conviction are from 1976 and could not possibly have any relevant to the issues before this court. Also, government counsel's motion notes that the conviction date for the bank robbery is unknown. It if cannot be shown that the conviction is within the time period noted under the statute, this becomes a further basis to deny the motion. The firearms conviction is from 1996, seven years ago. Although it is within the 10 year time period, a seven year old conviction could not provide any probative value to the fact finder. Moreover, as previously noted, this offense does not bear on Mr. Xxxxx's character to testify truthfully. Finally, its prejudicial value would far out way any probative value, a prior gun conviction would have.
Wherefore, for all the foregoing reasons, and any others which may appear to this court in a full hearing on this matter, William David Xxxxx respectfully requests that the government not be permitted to impeach him under Federal Rule of Evidence 609 with his prior convictions.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
Valencia Rainey
Assistant Federal Public Defender
625 Indiana Ave., N.W., Ste. 550
Washington, D.C. 20004
CERTIFICATE OF SERVICE
I hereby certify that on the day of February 2002, the foregoing Motion to Suppress and Incorporated Memorandum in Support, and proposed Order, were served upon Thomas C. Taylor, Assistant United States Attorney, 555 4th Street, N.W., Washington, D.C. 20001
Valencia Rainey
UNITED STATES OF AMERICA, :
Plaintiff :
WILLIAM DAVID Xxxxx, :
Defendant :
Upon consideration of defendant William David Xxxxx's, Motion to Preclude the
Government's Use of Prior Convictions under Fed. R. Evid. 609, and the Incorporated
Memorandum of Points and Authorities thereof, and the entire record in this case, it is this
day of , 2002, hereby
ORDERED that defendant William David Xxxxx's, Motion is granted; and the government
shall be precluded from introducing evidence of defendant's alleged prior convictions.
THE HONORABLE RICARDO URBINA
UNITED STATES DISTRICT JUDGE
Copies to:
Thomas C. Taylor Valencia Rainey
Assistant U.S. Attorney Assistant Federal Public Defender
Narcotics Section 625 Indiana Ave., N.W.
555 4th Street, N.W. Suite 550
Washington, D.C. 20001 Washington, D.C. 20004
1. According to the government's notice of intent and motion to impeach defendant with his prior conviction pursuant to Fed. R. Evid. 609, Mr. Xxxxx has three prior convictions. They include the offenses of: murder in 1976, possession of a firearm in 1996 and bank robbery with an unknown case number and date.