Thursday, January 17, 2013
Preemptive Strike: 3rd Circuit Finds Defendant Who Preemptively Introduced Drug Conviction Couldn't Appeal
Federal Rule of Evidence 609(a)(1) 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....
There has been a boatload of litigation surrounding Rule 609(a)(1), and that has led to some interesting issue regarding its applicability and appealability. Two of those issues were at the heart of the Third Circuit's recent opinion in United States v. Gaston, 2013 WL 142270 (3rd Cir. 2013).In Gaston, Edres Gaston was charged with possession of a firearm by a convicted felon. Before trial,
The government filed a motion in limine to admit evidence of Gaston's prior felony convictions as impeachment evidence under Federal Rule of Evidence 609(a). These convictions included: (1) an October 31, 2000 conviction for possession of controlled substances with intent to deliver; (2) an August 20, 2001 conviction for carrying a firearm without a license; (3) a January 26, 2005 conviction for possession of controlled substances with intent to deliver; and (4) a January 27, 2005 conviction for possession of controlled substances with intent to deliver.
And while the court deemed the firearm conviction inadmissible to impeach Gaston, it deemed all three drug convictions admissible under Rule 609(a)(1). This leads to the first Rule 609(a)(1) issue, which is that "[t]he District Court limited the government to asking about “the fact of the conviction and the date of the conviction." This is something that courts fairly typically do to allow the jury to see the probative value of prior convictions without being tainted by their prejudicial effect. Accordingly, when Gaston appealed the Rule 609(a)(1) ruling after he was convicted, the Third Circuit disagreed, finding that
the District Court minimized any prejudice that may have resulted from the admission of the convictions by limiting the government to asking about the fact of the conviction and the date of the conviction and issuing a limiting instruction that directed the jury that Gaston's prior convictions were not to be considered for any purpose other than assessing his credibility.
As it turns out, however, the Third Circuit found that it only had to address the admissibility of two of Gaston's prior convictions. This was because "[o]n direct examination, Gaston preemptively admitted to one of the felony drug crimes." Therefore, as Gaston himself acknowledged, he waived the right to challenge its admissibility on appeal pursuant to Ohler v. United States, 529 U.S. 753, 760 (2000), which held that a "defendant who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was error."