Monday, April 23, 2012
Reelin' In The Years: 11th Circuit Badly Botches Rule 609(b) Analysis, Bypassing "Confinement" Issue
Federal Rule of Evidence 609(b) provides that
This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
If you want to find an especially terrible analysis of Rule 609(b), you need to look no further than the recent opinion of the Eleventh Circuit in United States v. Colon, 2012 WL 1368162 (11th Cir. 2012). Even worse, that terrible analysis meant that the Elevent Circuit sidestepped the most interesting issue in the case.
In Colon, Jose L. Colon, Robyn L. Colon, and Carlos Cano appealed their convictions for conspiracy to commit bank fraud and substantive bank fraud. One of the grounds for Carlos' appeal was that the district court abused its discretion by allowing the government to impeach his testimony with his 12–year–old conviction for writing bad checks.
Carlos' conviction was in 1998, 12 years before trial, and that conviction "carried a ten-year suspended sentence that lasted until 2008." Looking at Federal Rule of Evidence 609(b), we can see the question that this sentence created. If the suspended sentence did not constitute "confinement," Carlos' conviction was 12 years-old. If that suspended sentence did constitute confinement, Carlos' conviction was 2 year-old and not subject to Rule 609(b). And, as the Eleventh Circuit noted, other circuits are split on the issue:
At least one circuit has held that a period of probation or parole constitutes "confinement" under Rule 609(b). See United States v. Gaines, 105 F. App'x 682, 695 (6th Cir.2004), vacated on other grounds by Gaines v. United States, 543 U.S. 1114, 125 S.Ct. 1090 (2005). However, other circuits have reached the opposite result. See United States v. Rogers, 542 F.3d 197, 198 (7th Cir.2008); United States v. Daniel, 957 F.2d 162, 168 (5th Cir.1992) (per curiam).
And, according to the court, it had never decided this issue. But the court also found that "this case does not require us to do so, because Carlos' 1998 conviction was relevant, probative, and not unfairly prejudicial." Instead, the court held that
In determining whether to admit a conviction under Rule 609(b), we consider the impeachment value of the prior conviction, the passage of time and the witness's conduct since the conviction, the similarity between the convicted conduct and the charged crime, the importance of the witness's testimony, and the centrality of the witness's credibility....In Carlos's case, he put his criminal intent in issue, testifying that he did not intend to participate in illegal activity. Carlos's bad check conviction involved a similar mens rea, intent to defraud, as the bank fraud and conspiracy charges. Furthermore, the convicted conduct and the charged bank fraud offense both involved Carlos's signature on documents by which he misrepresented his ability to meet his financial obligations. Moreover, the Government had a strong case against Carlos for bank fraud, but only circumstantial evidence of his criminal intent. For all of these reasons, the Government's admission of the prior conviction was necessary to impeach Carlos and was not unfairly prejudicial.
Wrong, wrong, wrong. Well, okay, the court was correct that the prior conviction had high impeachment value. The crime of writing bad checks is a crime of dishonesty, meaning that the conviction had high probative value because it tended to show that Carlos could be untrustworthy as a witness. But the similarity between the crime underlying the prior conviction and the crime charged means that the prior conviction was unfairly prejudicial. Why?
Well, the jury could not use the prior conviction to prove Carlos' propensity to misrepresent his ability to meet financial obligations and his likely conformity with that propensity at the time of the crime charged. And that's the point of the court considering the similarity between the convicted conduct and the charged crime: The more similar the prior crime to the present crime, the more likely that the jury will misuse prior conviction as propensity character evidence.
That means that while the court properly found that the prior conviction had high probative value, it also should have found that the prior conviction was highly unfairly prejudicial. And what that means is that its probative value almost certainly did not substantially outweigh the danger of unfair prejudice. And that means that the very issue that the court skirted -- whether a suspended sentence is "confinement" -- should have been the central issue in the case. Instead, the Eleventh Circuit botched the analysis.