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Univ. of South Carolina School of Law

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Monday, December 17, 2007

Blank Check: Fourth Circuit Finds Conviction For Passing A Worthless Check Inadmissible Under Rule 609(a)(2)

In United States v. Kelly, 2007 WL 4327773 (4th Cir. 2007,), Randy Kelly appealed from his conviction for traveling in interstate commerce for the purpose of engaging in illicit sexual conduct.  At trial, the following facts were adduced.  Kelly was a long-haul trucker who hauled goods to various points in the midwest and frequently rested and refueled at the Go-Mart truck stop near Charleston, West Virginia.  There, he met Cathy Carder, a prostitute, and became her regular client.  Kelly later asked Carder to supply him with both pornography and child pornography.  Subsequently, he informed Carder that he wanted to have sex with a 12 year-old virgin and asked her whether she could find one for him.  He later referred to his request as his "birthday present."

When Carder realized that Kelly was serious, she contacted a Charleston police officer and told him about Carder's request.  After working with police, Carder set up a day on which she would pretend to procure a child for Kelly.  On that date, Kelly arrived in West Virginia and asked Carder for his birthday present.  Carder then told him that she would retrieve the child, and Kelly gave her money to buy drugs and alcohol to relax the child.  Carder then left Kelly, went to a police officer, and retrieved a recording device and two Viagra pills.  Subsequently, she returned to Kelly and recorded a conversation in which Kelly detailed his plans for having sex with the child.  Police thereafter arrested Kelly and, based upon the recording and Carder's testimony, Kelly was convicted.

Kelly appealed to the Fourth Circuit Court of Appeals, alleging, inter alia, that the court improperly precluded him from impeaching Carder through evidence that she had a prior misdemeanor conviction for passing a worthless check.  Pursuant to Federal Rule of Evidence 609(a)(2), a witness can be impeached by a misdemeanor conviction  "if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness."

Starting with the the Fourth Circuit's 1981 opinion in United States v. Cunningham, 638 F,3d 696 (4th Cir. 1981), however, it appears that courts have found that passing a worthless check is not per se a crime of dishonesty or false statement.  In doing so the court in Cunningham noted that the Conference Committee Report on Rule 609(a)(2) found that the rule covered a narrow class of "crimes such as perjury or subordination 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 untruthfulness, deceit, or falsification bearing on the accused's propensity to testify truthfully."

The court in Cunningham noted that a conviction for passing a worthless check could fall into this category if it involved forgery or false pretenses but that it would not be covered by Rule 609(a)(2) if it merely involved a check being returned for "insufficient funds." Id. at 699.  The problem in Cunningham was the same as the problem in Kelly: in both cases, the defendant failed to adduce the facts underlying the witness' convictions, making it impossible for the courts to determine whether they involved dishonesty or false statements, making Rule 609(a)(2) inapplicable.  I am generally against per se rules, and I think that the fact intensive inquiry approved by the Cunningham courts and subsequent courts makes sense.

What troubles me, however, is another line of analysis in these cases.  Carder's conviction was under a Florida statute making it a crime to "draw, make, utter, issue, or deliver to another any check...for the payment of money or its equivalent, knowing...that the maker or drawer thereof has not sufficient funds."  Kelly did not raise the point at trial, but on appeal, he contended that the language of this statute made it clear that anyone convicted under it committed an act of dishonesty or false statement.  In dicta, the Fourth Circuit noted that the language of the statute still did not mean that a conviction under it was per se a crime of dishonesty or false statement because the statute could cover a person who issues a check knowing that he does not currently have adequate funds in his account but who intends in good faith to make a timely covering deposit.  This holding appears consistent with the holdings of other courts dealing with similar statutes.  See, e.g., United States v. Barb, 20 F.3d 694, 696 (6th Cir. 1994).   

I'm not sure that I understand the reasoning of these courts.  As noted, pursuant to the Conference Committee Report, larceny by false pretense is per se covered by Rule 609(a)(2).  Typically, a person who obtains money by false pretenses is guilty, regardless of whether he intended to and/or actually did repay the money obtained. See, e.g., Commonwealth v. Lewis, 720 N.E.2d 818, 822 (Mass.App.Ct. 1999).  It seems to me that a person who issues a check knowing that he does not currently have adequate funds in his account but who intends in good faith to make a timely covering deposit is similar enough to a person who obtains money by false pretenses but who intends to repay the money that their convictions should both per se be covered Rule 609(a)(2).

-CM

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