Saturday, September 6, 2008
Exchange For His Parole?: Seventh Circuit Find Probation/Parole Periods Don't Count In Rule 609(b)'s Clock
In its recent opinion in United States v. Rogers, 2008 WL 4072542 (7th Cir. 2008), the Seventh Circuit correctly concluded that the ten year clock of Federal Rule of Evidence 609(b) starts after an individual is released from imprisonment and not after the end of his subsequent probation period. In Rogers, Anthony Rogers was tried in 2005 on charges of making a false statement on a firearm-purchase form and being a felon in possession of a firearm. He testified in his own defense and was impeached with his 1993 conviction for distribution of cocaine. Rogers was released from prison on that conviction in 1994 after his sentence was modified to probation, and he thereafter remained on probation supervision until 1999.
At trial, the district court found that Rogers' previous conviction was not covered under Federal Rule of Evidence 609(b), which states, inter alia, that:
"[e]vidence 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."
According to the district court, Rogers was not "release[d]...from confinement" until his probation period ended, meaning that his prior conviction/release was less than 10 years old, making it admissible to impeach him under Federal Rule of Evidence 609(a)(1) as long as the "probative value of admitting this evidence outweigh[ed] its prejudicial effect to the accused."
After he was convicted, however, Rogers brought a motion for a new trial, in which he contended that his release from confinement was the date he was released from imprisonment, not the date that his probation period ended, making his prior conviction/release more than 10 years old. The district court agreed and found that while the probative value of Rogers' conviction outweighed its prejudicial effect, as required by Federal Rule of Evidence 609(a)(1), it did not do so to a substantial degree, as required by Federal Rule of Evidence 609(b). This decision makes sense to me, because, as I point out in my new article, Impeachable Offenses?, the Advisory Committee indicated in its Note to Federal Rule of Evidence 609(b) that "[i]t is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances." The district court nonetheless found that its erroneous impeachment ruling was harmless error, prompting Rogers' appeal to the Seventh Circuit.
The Seventh Circuit noted that the question it was presented with was "whether the probation that followed his release from prison for that conviction (essentially, his parole) may be said to constitute 'confinement imposed for that conviction.'" The court indicated that this was a matter of first impression for it and it answered the question in the negative, relying upon the Fifth Circuit's opinion in United States v. Daniel, 957 F.2d 162 (5th Cir. 1992). In that opinion, the Fifth Circuit in turn relied upon the Advisory Committee Note to Rule 609(b), which it found conclusively addressed and rejected the probation/parole formulation of the ten year time limit. I actually think that both opinions chop up that Note too much, so I will simply quote it directly to show why both courts were right. According to the Advisory Committee,
"Rule 609(b) as submitted by the Court was modeled after Section 133(a) of Public Law 91-358, 14 D.C. Code 305(b)(2)(B), enacted in 1970. The Rule provided:
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 release of the witness from confinement imposed for his most recent conviction, or the expiration of the period of his parole, probation, or sentence granted or imposed with respect to his most recent conviction, whichever is the later date.
Under this formulation, a witness' entire past record of criminal convictions could be used for impeachment (provided the conviction met the standard of subdivision (a)), if the witness had been most recently released from confinement, or the period of his parole or probation had expired, within ten years of the conviction.
The Committee amended the Rule to read in the text of the 1971 Advisory Committee version to provide that upon the expiration of ten years from the date of a conviction of a witness, or of his release from confinement for that offense, that conviction may no longer be used for impeachment. [And the Rule was subsequently amended to allow such remote convictions to be admissible in rare cases with exceptional circumstances]."
Thus, the Advisory Committee clearly found that the date of "release...from confinement" was different from the date of the expiration of a parole/probation period and that it was the latter date that was controlling under Federal Rule of Evidence 609(b). I thus agree with the Seventh Circuit that "'confinement' for purposes of the ten-year time limit in Rule 609(b) does not include periods of probation or parole." Indeed, simply thinking logically about what we think is meant by the word "confinement," I don't see how it could be read to include a parole probation/parole period.
[As often happens in conviction impeachment cases, however, the Seventh Circuit agreed with the district court that its evidentiary error was harmless in light of the other evidence of Rogers' guilt.].