Wednesday, June 13, 2012
Did You Notice That?: District Of Delaware Finds Written Notice Not Required Under Rule 609(b) If Opponent Had Actual Notice
Federal Rule of Evidence 609(b) states 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.
So, what happens if there is no indication from the record that the prosecution gave written notice to the defense of its intent to use remote convictions, but there is an indication that defense counsel had knowledge of that intention? This was the issue addressed by the recent opinion of the United States District Court for the District of Delaware in Flood v. United States, 2012 WL 2114866 (D.Del. 2012).
In Flood, Teresa Flood was convicted of one count of bank fraud, two counts of aggravated identity theft, and two counts of wire fraud. Flood thereafter filed a document titled "complaint for declaratory judgment and injunctive relief," which the court construed as a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.
One of the grounds for Flood's motion was that her attorney was ineffective because she failed to prevent the government from impeaching Glenny Coleman, an alleged co-conspirator, with evidence of his prior convictions older than ten years. According to Flood these convictions should have been deemed inadmissible to impeach Coleman because they were more than ten years old and the prosecution failed to given written notice of its intent to use them to impeach. In responding to this argument, the District of Delaware found that
Admittedly, the record does not explicitly show, and the government does not indicate, if defense counsel was given "advance written notice" of the government's intent to impeach Coleman with his prior convictions....Nevertheless, the record implicitly demonstrates defense counsel's prior knowledge of Coleman's older convictions, as well as the government's intent to use those convictions to impeach him. First, the parties filed a joint set of proposed jury instructions which contained an instruction regarding the "impeachment of witness—prior conviction (F.R.E. 609)."...This instruction stated, "You heard evidence that Glenny Coleman, a witness for the defendant, was previously convicted of several crimes involving dishonesty and false statements. You may consider this evidence, along with other pertinent evidence, in deciding whether or not to believe Glenny Coleman and how much weight to give to Glenny Coleman's testimony."...Second, defense counsel actually referred to several of Coleman's prior convictions when setting forth the defense theory that Coleman was a perpetual conman, schemer, and convict who duped movant into unknowingly participating in the underlying crimes he committed. For instance, during her opening statement, defense counsel mentioned Coleman's 2007 conviction, as well the fact that he had additional "prior convictions for crimes of falsification and fraud."...During direct examination, counsel questioned Coleman about two of his older convictions: one for credit card fraud in 1991, and the other for wire fraud, bank fraud, and credit card fraud in 1995....Defense counsel's questioning elicited Coleman's consistent responses that he was a major conman who had duped movant.
Given this record, the court cannot conclude that defense counsel's failure to object to the government's impeachment of Coleman with his prior convictions, or her failure to file a motion in limine to exclude such evidence, was due to inattention or lack of notice. Rather, defense counsel strategically used Coleman's criminal history to illustrate his long career as a conman in order to support the defense theory that movant was yet another person duped by him.
So, the bottom line is that the District of Delaware held that written notice is not required under Federal Rule of Evidence 609(b) as long as the other party has actual notice of the subject conviction(s). I can't say at this point whether I agree or disagree with the court's conclusion, but I can say that this conclusion is different from the conclusion of at least one other court regarding notice under the Rape Shield Rule. Here is one of the hypotheticals from my Rape Shield Rule Chapter for the ELangdell Project:
Hypothetical 10: Jonathan Pablo is charged with rape. At trial, he seeks to present evidence (1) that the alleged victim was seen undressed with two other men on the night of the rape; and (2) that the alleged victim made sexual advances towards Pablo’s co-defendant on the night of the alleged rape. Pablo acknowledges that this argument is covered by Rule 412 but believes that it qualifies for admission under Rule 412(b)(1)(C). Pablo did not file a written motion under Rule 412(c)(1)(A). Pablo, however, claims that the government relieved him of his obligation to comply with Rule 412(c) by providing its own written notice to the court a month before indicating that Pablo might introduce some evidence that would fall within Rule 412’s scope. Is he correct? See United States v. Pablo, 625 F.3d 1285 (10th Cir. 2010).
The answer, according to the Tenth Circuit, was that it was irrelevant that the government had actual notice of the subject evidence because Pablo did not comply with Federal Rule of Evidence 412(c)(1)(A), which requires a party seeking to admit evidence under an exception to the Rape Shield Rule to "file a motion that specifically describes the evidence and states the purpose for which it is to be offered...."