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Univ. of South Carolina School of Law

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Sunday, October 10, 2010

Little Bribes: Fifth Circuit Finds Bribery Is Per Se A Crime Of Dishonesty Or False Statement For Rule 609(a)(2) Purposes

Federal Rule of Evidence 609(a)(2) provides that

For the purpose of attacking the character for truthfulness of a witness,

(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, 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.

Moreover, the Advisory Committee's Note to Rule 609 provides that crimes of dishonesty or false statement include

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.

So, what about a conviction for bribery? According to the Fifth Circuit's opinion in United States v. Jefferson, 2010 WL 895040 (5th Cir. 2010), such a conviction also qualifies for admission under Rule 609(a)(2). I'm not sure that I agree. 

In Jefferson, Mose Jefferson and Renee Pratt were charged, inter alia, with conspiracy to violate the Racketeer Influenced and Corrupt Organizations (RICO) Act. After the district court judge deemed Jefferson's prior convictions for bribery and obstruction of justice inadmissible in the event that he testified, the government appealed. The Fifth Circuit found that the district court judge erred in deeming the obstruction of justice convictions inadmissible because they were per se admissible under Federal Rule of Evidence 609(a)(2) based upon the fact that they were convictions resulting from Jefferson knowingly and corruptly attempting to persuade an individual to lie to federal law enforcement authorities.

Meanwhile, the Fifth Circuit found that the district court judge erred in deeming the bribery convictions inadmissible because they were per se admissible under Federal Rule of Evidence 609(a)(2) based upon the fact that "[B]ribery is a crimen falsi in that it involves dishonesty....Hence, it is automatically admissible [under] Fed.R.Evid. 609(a)(2)."

Now, I certainly agree that bribery can be a crime involving dishonesty. For instance, if Jefferson also bribed the individual to lie to federal law enforcement authorities (which may very well have been the case), the act of bribery would have been a crime of dishonesty. But let's say that a defendant bribes a candidate so that he will kick some money his way in the event that he is elected (by awarding him a government contract, etc.). If a defendant points a gun at a bank teller and tells him to, well, kick some money his way, this act of bank robbery is not thought to be a crime of dishonesty or false statement for Rule 609(a)(2) purposes.

And I think that this makes sense. In this latter example, the defendant makes his true intentions to the teller clear and is telling the truth: He wants money. This makes it fundamentally different from the case where a defendant asks to borrow a friend's car with no intention of returning it or a retailer pulls a bait and switch on a customer, acts that would qualify as crimes of dishonesty or false statement. In my mind, acts of bribery are similar to the bank robbery example. The defendant makes his true intentions to the potential politician clear and is telling the truth: He wants money. I guess in a sense you could say that the defendant in this case is cheating the system and asking the politician to do something illegal, but so is the bank robber in the example above.

In summation, I don't think that acts of bribery always qualify as crimes of dishonesty or false statement, and I think that the Fifth Circuit should have stated the facts of Jefferson's bribery convictions.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/10/bribery-609a2-us-v-jefferson-f3d-2010-wl-3895040ca5-la2010.html

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