Sunday, September 21, 2008
What A Difference A Month Makes: 1st Circuit Finds That Trial Court Properly Excluded Prosecution Witness' Felony Conviction
The recent opinion of the First Circuit in United States v. Nguyen, 2008 WL 4277309 (1st Cir. 2008), displays the strikingly different balancing tests that are used when a criminal defendant seeks to impeach a witness for the prosecution via a felony conviction that is more or less than ten years old. According to the court, Nguyen involved a tale that was "tawdry, but quickly told." And, according to that tale,
Tommy Nguyen co-managed a nail salon in West Warwick, Rhode Island and placed wagers totaling $12,000 on several basketball games. The total amount wagered was lost. Hot on the heels of this debacle, Tommy received a telephone call from Van Anh. Anh informed him that the time had come to pay the piper. Minutes later, Anh appeared at the nail salon along with two other men, who demanded the money. Tommy sparred for time, and Anh agreed that he could pay the debt in installments. After Tommy had paid $6,800, he thought that the matter was settled, but Anh insisted upon payment of the $5,200 balance. When Tommy demurred, Anh stated that he knew where Tommy worked and that Tommy could not "run." Anh then announced that he would send someone to collect what was owed.
A few days later, Tommy stepped out of his nail salon to smoke a cigarette, and three men were lurking nearby: Thinh Cao, Khong Nguyen, and Khong's brother, Quoc Nguyen. The men made it plain that they had come to collect the balance of the indebtedness, and Tommy replied that he already had paid what he owed and retreated inside the nail salon. When Tommy left the shop about half an hour later, the three collectors surrounded him and threatened that if he did not pay they would "take care" of him. Tommy then called Anh on a cell phone, but Anh remained adamant; he warned that Tommy had better square the account. When Tommy again refused, the three men knocked him to the ground and kicked and pummeled him. Tommy was eventually able to escape, and the assailants fled, but they were subsequently apprehended and identified by the victim and eyewitnesses.
In one trial, Van Anh, Thinh Cao, and Khong Nguyen were convicted of conspiring to collect a gambling debt from Tommy Nguyen and beating him to facilitate the debt collection. In another trial, Quoc Nguyen was acquitted of the former charge but convicted of the latter charge. Apparently, the jury split the baby, giving some credit to Quoc's trial testimony that he didn't know about the gambling debt and that he had no involvement in the altercation beyond pushed Tommy in an effort to keep his balance after fisticuffs had begun, and giving some credit to Quoc's earlier confession to the crime and Tommy' testimony implicating Quoc in the attack.
On appeal, Quoc claimed that the jury should have been able to hear a piece of evidence that would have given them reason to discredit Tommy's testimony: his May 23, 1996 felony conviction for entering any automobile or other motor vehicle with the intent to commit a theft or a felony, which did not result in Tommy being incarcerated. And if Quoc's trial had started on May 23, 2006 or earlier, he likely would have had a terrific argument. Under Federal Rule of Evidence 609(a)(1), "evidence that a witness other than an accused has [a felony conviction] shall be admitted, subject to Rule 403." In turn, Rule 403 states that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
Under this test, convictions of witnesses for the prosecution are typically admissible for impeachment purposes. Indeed, the Advisory Committee's Note to the 1990 amendment to Federal Rule of Evidence 609 states that "trial courts will be skeptical when the government objects to impeachment of its witnesses with prior convictions. Only when the government is able to point to a real danger of prejudice that is sufficient to outweigh substantially the probative value of the conviction for impeachment purposes will the conviction be excluded."
"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."
In other words, Rule 609(b) flips the Rule 403 balancing test and makes it extremely unlikely that older convictions will be admissible for impeachment purposes. Indeed the Advisory Committee's Note to the Rule indicates that "[i]t is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances." And, according to the First Circuit, the problem for Quon was that he "did not identify any specific facts or circumstances showing that the probative value of Tommy's earlier conviction overbalanced its unfairly prejudicial effect." If Quon's trial were a month earlier or if Tommy' conviction were a month later, it seems clear that the result would have been different.