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Univ. of South Carolina School of Law

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Friday, January 4, 2013

That is So Not True: 6th Circuit Finds Theft of Services Conviction Not Covered by Rule 609(a)(2)

Federal Rule of Evidence 609(a) provides that

The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:  

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:  

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and  

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and  

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

So, let's say that a witness has been "convicted of misdemeanor theft of services and fined fifty dollars after he had a friend, who worked for a utility company, surreptitiously hook services up to his home." Because this crime was a misdemeanor, it cannot be admissible under Rule 609(a)(1). But should it be admissible under Federal Rule of Evidence 609(a)(2)? According to the recent opinion of the Sixth Circuit in United States v. Washington, 2012 WL 6682015 (6th Cir. 2012), the answer is "no." I disagree.

In Washington, the facts were as stated above. Mario Washington was convicted of carjacking, and he thereafter appealed, claiming, inter alia, that the district court erred by precluding him from impeaching a witness for the prosecution with evidence of his conviction for theft of services.

The Sixth Circuit disagreed, finding that

Establishing the elements of theft of services under Tennessee law does not "require[ ] proving—or the witness's admitting-a dishonest act or false statement." See Fed.R.Evid. 609(a)(2). The relevant state statute proscribes "[i]ntentionally obtain[ing] services by deception, fraud, coercion, forgery, false statement, false pretense or any other means to avoid payment for the services." Tenn.Code Ann. § 39–14–104. Although a violation of the statute could indeed involve dishonesty or false statement—as is clear by the statute's references to deception, fraud, false statement, and the like—a defendant could also be convicted for using "any other means to avoid payment," so the statute clearly implicates conduct that does not fall within the ambit of Rule 609(a)(2). Therefore, "establishing the elements of the crime" does not require establishing dishonesty or false statement. Indeed, under the circumstances of [the witness]'s conviction, it does not appear that he engaged in any of the specifically enumerated acts contained in the statute, although he did use "other means to avoid payment."

Instead, the court found that the witness's

crime fits more comfortably in the class of crimes that this court and others have concluded fall outside the scope of Rule 609(a)(2). Theft is a prime example of a crime of stealth, and it has been distinguished from crimes of dishonesty in most federal circuits. For instance, "[i]t is established in [the Eleventh] Circuit...that crimes such as theft, robbery, or shoplifting do not involve 'dishonesty or false statement' within the meaning of Rule 609(a)(2)."...The Eighth Circuit has reasoned that "[t]heft, which involves stealth and demonstrates a lack of respect for the persons or property of others, is not 'characterized by an element of deceit or deliberate interference with a court's ascertainment of truth.'"... Likewise, the Fifth Circuit has noted that shoplifting does not involve dishonesty or false statement within the meaning of the rule.

I'm not sure that I can agree with the Sixth Circuit here. First, I'm not sure exactly what the court is saying. In the first block quote above, the Sixth Circuit seems to be saying that Rule 609(a)(2) does not apply because theft of services does not require a dishonest act or false statement. But as the Advisory Committee Note to the 2006 amendment to Federal Rule of Evidence 609 makes clear, such an interpretation wouod be incorrect. According to the Note,

Ordinarily, the statutory elements of the crime will indicate whether it is one of dishonesty or false statement. Where the deceitful nature of the crime is not apparent from the statute and the face of the judgment—as, for example, where the conviction simply records a finding of guilt for a statutory offense that does not reference deceit expressly—a proponent may offer information such as an indictment, a statement of admitted facts, or jury instructions to show that the factfinder had to find, or the defendant had to admit, an act of dishonesty or false statement in order for the witness to have been convicted.

This then seems to be the focus of the second block quote: construing the witness's crime as a crime of stealth like ordinary theft or shoplifting. But this clearly wasn't the nature of the witness's crime. Instead, as the Sixth Circuit noted, the witness's crime was a surreptitious crime which consitsed of impliedly making the assertion to the utility that he did (or did not) have service. Therefore, I clearly see the witness's crime as one that involved dishonesty or false statement.

-CM

http://lawprofessors.typepad.com/evidenceprof/2013/01/609a2-us-v-washington-f3d-2012-wl-6682015ca6-tenn2012.html

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Comments

I agree with the court's conclusion though I don't find the logic sound. First, the witness certainly can't have made a "false statement" because he didn't make a statement at all. I'm skeptical that the witness had an affirmative duty to tell the utility company he was getting services-- that duty would seem to fall on the friend--though maybe one could argue it was a conspiracy. The friend is the dishonest one, the witness merely benefited from it. Does the fact that a person intends to benefit from another's wrongdoing itself rise to the level of deceit that falls within the scope of the rule?

TBH I don't think the witness committed the crime he was charged with based on the facts outlined here. It seems to me the more fitting description of his behavior is "receiving stolen services". So is receiving stolen goods a crime that typically would fall under the rule? If not, this shouldn't either.

Posted by: Daniel | Jan 4, 2013 10:04:34 PM

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