MARIA E. STRATTON (No. 090986)

Federal Public Defender

CARLTON F. GUNN (No. 112344)

Deputy Federal Public Defender

DEREK W. LI (No. 150122)

Deputy Federal Public Defender

Suite 1503, United States Courthouse

312 North Spring Street

Los Angeles, California 90012-4758

Telephone (213) 894-7730

Facsimile (213) 894-0081

Attorneys for Defendant

xxxxxxxxxxxxxxxxxxxxxx

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

xxxxxxxxxxxxxxxx,

Defendant.

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NO. CR xx-83(C)-WDK

NOTICE OF MOTION; MOTION TO EXCLUDE EVIDENCE OF PRIOR CONVICTION; MEMORANDUM OF POINTS AND AUTHORITIES

Hearing Date:January 19, 1999

Hearing Time: 9:30 a.m.

TO: PLAINTIFF, UNITED STATES OF AMERICA AND ASSISTANT UNITED STATES ATTORNEYS LAWRENCE MIDDLETON AND PATRICIA DAVIES:

PLEASE TAKE NOTICE that on January 19, 1999 at 9:30 a.m., or at such other date and time as the court may designate, defendant xxxxxxxx will bring on for hearing the following Motion:

/ / /

MOTION

Defendant xxxxxxxx, through his counsel of record, Deputy Federal Public Defender, Carlton F. Gunn and Deputy Federal Public Defender Derek Li, hereby move this Honorable Court for an order excluding evidence of Mr. xxxxxxxxx prior conviction for trafficking in counterfeit goods, in violation of 18 U.S.C. § 2320. This motion is made pursuant to Rule 403, Rule 404(b), and Rule 609 of the Federal Rules of Evidence and is based upon the attached Memorandum of Points and Authorities, all files and records in this case, and such additional evidence and argument as may be presented to the court regarding this motion.

Respectfully submitted,

MARIA E. STRATTON

Federal Public Defender

DATED: July __, 2000 By______________________________

CARLTON F. GUNN

Deputy Federal Public Defender

DATED: November , 1998 By

DEREK LI

Deputy Federal Public Defender

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

xxxxxxx is charged with trafficking in counterfeit goods, in violation of 18 U.S.C. § 2320, and various related charges. Trial on the second superseding indictment ended with an acquittal on one money laundering count and a mistrial when the jury was unable to reach a verdict on the remaining counts. Retrial on a third superseding indictment is presently scheduled for January 19, 1999.

Prior to the first trial, Mr. xxxx filed various motions, including motions seeking to preclude use of a prior 18 U.S.C. § 2320 conviction which Mr. xxxx sustained in 1988. The government offered evidence of that conviction under both Rule 609 and Rule 404(b) of the Federal Rules of Evidence, and the Court ruled it admissible.⁽¹⁾

Mr. xxxx has filed a general "renewal of motions and request for voir dire and jury instructions." Mr. xxxx does not intend to re-brief and reargue each motion -- unless additional briefing and argument is requested by the Court -- because in most instances the facts and circumstances have not changed and the Court would presumably rule as it did before.

Supplemental briefing and reconsideration of the admissibility of Mr. xxxx's prior conviction is appropriate, however, because the circumstances have changed. In particular, the passage of additional time make the test for admissibility under Rule 609 very different. For the reasons set forth below, the conviction is not admissible under that more exacting test. And the balancing of probative value on prejudice under Rule 404(b) and Rule 403 is then very different, because the Court cannot rely on the fact that the prior conviction would be admissible under Rule 609 in any event.

II.

ARGUMENT

A. MR. xxxx'S PRIOR CONVICTION IS EXCLUDABLE UNDER RULE 609 BECAUSE IT IS NOW MORE THAN TEN YEARS OLD AND THE PROBATIVE VALUE OF THE CONVICTION FOR IMPEACHMENT PURPOSES DOES NOT SUBSTANTIALLY OUTWEIGH ITS PREJUDICIAL EFFECT.

Rule 609(a) of the Federal Rules of Evidence provides:

For the purpose of attacking the credibility of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighed his prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

Fed. R. Evid. 679(a).

Before the first trial, the government argued that Mr. xxxx's prior 18 U.S.C. § 2320 conviction was admissible under both subsection (a)(1) and subsection

(a)(2). Rule 609(a) does not apply when the prior conviction is more than ten years old, however. Instead, Rule 609(b) applies. That rule provides:

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

Fed. R. Evid. 609(b).

Rule 609(b) sets a far more exacting standard than Rule 609(a). See United States v. Portillo, 699 F.2d 461, 464 (9th Cir. 1982) (referring to the "more exacting requirements of Rule 609(b)"). Prior convictions which are more than ten years old are presumptively inadmissible. United States v. Vay, 762 F.2d 1314, 1317 (9th Cir. 1985); United States v. Portillo, 633 F.2d 1313, 1323 (9th Cir. 1980), cert. denied, 450 U.S. 1043 (1981) (hereinafter "Portillo I"). [T]he prosecution must present evidence upon which the court can determine that the probative value of the remote conviction substantially outweighs his prejudicial effect." Portillo I, 633 F.2d at 1323 (emphasis in original). There must be "specific facts and circumstances which demonstrate that the interests of justice require that the evidence be admitted despite the presumption in subsection (b) against its admissibility." Id.

Even crimes of dishonesty which are automatically admissible under Rule 609(a)(2) when less than ten years old, are excludable under Rule 609(b). This is illustrated by American Home Assurance Co. v. American President Lines, 44 F.3d 774 (9th Cir. 1994). In that case, the court excluded perhaps the clearest example of

a Rule 609(a)(2) crime of dishonesty -- a conviction for fraud -- under Rule 609(b).

In Mr. xxxx's prior 18 U.S.C. § 2320 conviction was about as far from fraud as is possible. Section 2320 is not just a consumer protection statute but is independently a trademark protection statute designed to protect the business interests of trademark holders. As explained in United States v. Hon, 904 F.2d 803 (2d Cir. 1990):

[A] requirement that confusion among actual or [potential purchasers] be shown as unnecessary. Because the purposes of the trademark laws include protection of the integrity of the mark itself, as well as prevention of consumer fraud, we hold that the "likely to confuse" standard of 18 U.S.C. § 2320 is not limited to purchasers or potential purchasers.

Id. at 808.

A defendant may be convicted under section 2320 even if he is entirely up-front and honest with the purchasers of the product bearing the counterfeit mark.

In such circumstances, an 18 U.S.C. § 2320 conviction is simply a business crime. It involves no misrepresentation or other indicium of a propensity to lie. Cf. United States v. Ortega, 561 F.2d 803, 806 (9th Cir. 1997) (limiting "dishonesty and false statement" in Rule 609 to "those crimes that involve some element of misrepresentation of other indicium of a propensity to lie"). It involves no fraud. Cf. American Home Assurance Co., supra. It does not even involve theft, except perhaps in the most technical sense. Cf. United States v. Murray, 751 F.2d 1528, 1533 (9th Cir. 1985) (finding no abuse of discretion in admission of receiving stolen property conviction under Rule 609(b) because of "significant conflict" between defendant's testimony and that of government's chief witness and because conviction for receiving stolen property "suggests a lack of voracity." (quoting United States v. Field, 625 F.2d 862, 872 (9th Cir. 1980))), cert. denied, 474 U.S. 979 ( ).⁽²⁾

Mr. xxxx's prior conviction dealt within the trademark protection category of section 2320 offenses, not the consumer fraud category. As Mr. xxxx explained in testimony which was uncontradicted at trial -- and which is corroborated by the presentence report from his prior case -- he was selling counterfeit Louis Vuitton goods at prices so low that no one could even have imagined they were authentic. See Exhibits A, B. [testimony in presentence report; check presentence report for corroboration] Cf. United States v. Hon, 904 F.2d at 804 (sale of counterfeit Rolex watches at prices ranging from $13.00 to $17.00). And Mr. xxxx told his customers that the goods were not authentic; he described them as "imitation" Louis Vuitton goods. See Exhibit A, B. [again, check whether this is actually in presentence report]

Given these underlying facts and the age of Mr. xxxx's prior conviction, it has relatively probative value for impeachment purposes. On the other side of the coin, the prejudicial effect is great, for the jury will be especially inclined to draw an impermissible propensity inference, see infra p. , when they find out that Mr. xxxx has a prior conviction for the same offense he is charged with in the present case. The probative value of the prior conviction does not come close to "substantially outweigh[ing]" the prejudicial effect, and it is therefore inadmissible under Rule 609.

B. THE EVIDENCE OF MR. xxxx'S PRIOR CONVICTION IS INADMISSIBLE UNDER RULE 404(B) AND SHOULD BE EXCLUDED UNDER RULE 403 BECAUSE ANY MINIMAL PROBATIVE VALUE IT MAY HAVE ON A CONTESTED ISSUE IS SUBSTANTIALLY OUTWEIGHED BY THE PREJUDICIAL EFFECT OF THE PROPENSITY INFERENCE THE JURY WILL BE NATURALLY INCLINED TO DRAW.

1. The evidence of Mr. xxxx's prior conviction is inadmissible under Rule 404(b) because the underlying conduct was overly remote and insufficiently similar.

While the Ninth Circuit has described Rule 404(b) as a "rule of inclusion," it has also urged caution in applying the rule. In United States v. Hodges, 770 F.2d 1475 (9th Cir. 1985), for example, the court noted:

Extrinsic acts evidence "is not looked upon with favor" and ... its use "must be narrowly circumscribed and limited." A reluctance to sanction the use of evidence of other crimes stems from the underlying premise of our criminal justice system, that the defendant must be tried for what he did, not for who he is. Under our system, an individual may be convicted only for the offense for which he is charged and not for other unrelated criminal acts which he may have committed. Therefore, the guilt or innocence of the accused must be established by evidence relevant to the particular offense being tried, not by showing that the defendant has engaged in other acts of wrongdoing."

Id. at 1479 (citations omitted). See also United States v. Brown, 880 F.2d 1012, 1014 (9th Cir. 1989).

The test for admissibility which the Ninth Circuit has annunciated is a four-factor one. The four requirements are: (1) that the evidence tends to prove a material point; (2) that the prior act is not too remote in time; (3) that the evidence is sufficient to support a finding that the defendant committed the other act; and (4) that, in at least some cases, the act is similar to the offense charged. United States v. Vizcarra-Martinez 66 F.3d 1006, 1013 (9th Cir. 1995) (quoting United States v. Mayans, 17 F.3d 1174, 1181 (9th Cir. 1994)).

The evidence of Mr. xxxx's prior conviction is not admissible under this test.

a. Proof of Material Point.

Mr. xxxx does concede that the government has offered the evidence to prove a material point, at least in part. In the opposition to Mr. xxxx's motion in limine prior to the first trial, the government offered the evidence as probative of (1) Mr. xxxx's "long-term involvement in the leather goods industry;" (2) Mr. xxxx's "awareness of trademarks;" and (3) Mr. xxxx's "awareness of... the necessity in dealing in genuine goods only (regardless of the quality of any particular at issue)." Government's opposition to defendant xxxx's motion to exclude evidence of other bad acts, filed March 13, 1996, at 5. And, at trial, the government

2. Rule 403 analysis.

III.

CONCLUSION.

Mr. xxxx will be prejudiced in the extreme if evidence of his prior conviction is admitted. When the jury hears that he was convicted of the same offense with which he is charged in the present case, it will be unable to resist drawing the very propensity inference which is barred by Rule 404(b). And the probative value of the prior conviction is minimal. It is presumptably inadmissible for impeachment purposes under Rule 609(b) and is not the sort of offense which can overcome that presumption of admissibility. It also has little probative value under Rule 404(b) because it shows only that Mr. xxxx knew about the existence of availability of counterfeit goods and Mr. xxxx is willing to stipulate that he had this knowledge.

Respectfully submitted,

MARIA E. STRATTON

Federal Public Defender

DATED: July __, 2000 By______________________________

CARLTON F. GUNN

Deputy Federal Public Defender

DATED: November , 1998 By

DEREK W. LI

Deputy Federal Public Defender

1. Defense counsel does not have a transcript of the hearing at which the Court ruled on this question and does not recall the exact basis for the Court's ruling. The government argued that the conviction was admissible on three theories -- for impeachment as a "crime of dishonesty" under Rule 609(a)(2), as a general felony conviction under Rule 609(a)(1), and as evidence of Mr. xxxx's knowledge under Rule 404(b).

2. While 18 U.S.C. § 2320 does use the term "counterfeit," the mere use of that term does not make it a "crime of dishonesty" for purposes of Rule 679. In determining whether a prior conviction is a "crime of dishonesty" under Rule 609, the court must look beyond the statutory label and language and inquire into both the case law construing the statutory language and the underlying conduct. See, e.g., United States v. Barb, 20 F.3d 694, 695-96 (6th Cir. 1994) (concluding that Tennessee conviction for "issuing worthless checks" not "crime of dishonesty" after in-depth analysis of Tennessee case law construing statute); United States v. Mejia-Alarcon, 995 F.2d 982, 990 (10th Cir.) (Concluding conviction for unauthorized acquisition and possession of food stamps in violation of 7 U.S.C. § 1024 not "crime of dishonesty" because crime "does not include an element of deceitfulness or untruthfulness"),

cert. denied, 510 U.S. 927 (1993); United States v. Motley, 940 F.2d 1079, 1083 (7th Cir. 1991) (witness' conviction for "check deception" properly excluded words defendant did not offer any proof that conviction was in fact for deceptive practices and not merely for insufficient funds); United States v. Livingston, 816 F.2d 184, 190 (5th Cir. 1987) (witness' insufficient funds check conviction properly excluded where defendant did not show that conviction involved element of intent to defraud); United States v. Cunningham, 638 F.2d 696, (4th Cir. 1981) noting that "[t]he shotgun term 'worthless check'" could involve forgery, false pretenses or the circumstances which would make it "crime of dishonesty" but also could involve something "as innocuous as a check returned for 'insufficient funds'"). As in the bad check cases and food stamp fraud case just cited, the elements of 18 U.S.C. § 2320 are not limited to fraudulent conduct but also extend to certain non-fraudulent conduct.