Rule 609(b): Probation Edition: Middle District Of Florida Implies Probation Is "Confinement"

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 constitutes "confinement" for Rule 609(b)? This was an issue that the United States District Court for the Middle District of Florida did not need to address in its recent opinion in United States v. Sararo, 2012 WL 3041182 (M.D.Fla. 2012). But that didn't stop the court from implying that a period of probation constituted "confinement" for Rule 609(b) purposes.

In Sararo, the government filed a motion in limine before the trial of Alfredo J. Sararo, III, seeking to preclude him from impeaching Michael Meehan, a witness for the prosecution. Meehan was convicted in 1993 of conspiracy to distribute methamphetamine and money laundering and received a sentence of five years probation. In deciding whether to grant the motion, the court cited to Rule 609(b) and found that

Assuming a term of probation is "confinement" within the meaning of the Rule, more than ten years has passed since Meehan's completion of five years probation in approximately 1998.

Accordingly, the court granted the government's motion, finding that Sararo had failed to prove that the probative value of the convictions substantially outweighed their prejudicial effect.

I'm not sure what import to give to the court's statement on probation as "confinement." Was the court simply saying that even if probation is confinement, Meehan's convictions were still more than ten years' old? Or was the court implying that probation does constitute "confinement" for Rule 609(b) purposes? I don't know, but the issue already could have been resolved when the Eleventh Circuit recently should have, but did not, address the issue.

-CM