Unimpeachable?: Nolo Contendere Pleas, Failure to Register, & Federal Rule of Evidence 609

The recent opinion of the United States District Court for the Southern District of Florida in Dingman v. Cart Shield USA, LLC, 2013 WL 3353835 (S.D.Fla. 2013), addresses three interesting questions under Federal Rule of Evidence 609: (1) are convictions resulting from nolo contendere pleas potentially admissible under Rule 609; (2) is a conviction for failure to register as a sex offender a crime of dishonesty or false statement under Rule 609(a)(2); (3) and should a conviction for failure to register as a sex offender be admissible under Rule 609(a)(1)?

In Dingman, Jonathan Dingman files a complaint against Cart Shield, a company that sanitizes shopping carts for grocery stores throughout the Southeastern United States, alleging that it violated the Fair Labor Standards Act. Before trial, Dingman moved to preclude Cert Shield from admitting any of his prior convictions for impeachment purposes. One of these convictions was a felony conviction for failure to register as a sex offender.

First, Dingman claimed that convictions resulting from nolo contendere pleas are inadmissible under Federal Rule of Evidence 609. The court disagreed, concluding that

The overwhelming case law on this subject is that nolo contendre judgments are not excludable under Rule 609. Brewer v. City of Napa, 210 F.3d 1093, 1096 (9th Cir.2000) (“evidence of a conviction based on a no contest plea can be admitted for impeachment purposes under Rule 609”); United States v. Sonny Mitchell Ctr., 934 F.2d 77,79 (5th Cir.1991) (affirming district court's ruling allowing government to impeach with four prior nolo contendre convictions); Buckley Towers Condo., Inc. v. QBE Ins. Corp., No. 07–22988–CIV–TORRES, 2008 WL 5505415 (S.D.Fla. Oct.21, 2008) (discussing admission of nolo contendre convictions).    

Second, Dingman claimed that his conviction could not be admissible under Rule 609(a)(2), which per se allows for the admission of evidence of a (not more than 10 year old) conviction for a crime "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." The court agreed with Dingman, finding that

Cart Shield has not met its burden of showing that Dingman's failure to register as a sex offender involved a dishonest act or false statement. Cart Shield has not argued that the statutory elements of the crime indicate that “it is one of dishonesty or false statement.”...Nor has it offered any information “such as an indictment, a statement of admitted facts, or jury instructions” to show that the Florida state court had to find, or that Dingman admitted to, an act of dishonesty or false statement in order to be convicted. Id. And the Court rejects Cart Shield's assertion that State v. Giorgetti, 868 So.2d 512 (Fla.2004), stands for the proposition that a conviction for failure to register as a sex offender in Florida is a false statement or dishonest act. Rather, all that case stands for is that Florida's failure to register as a sex offender statute includes an element of intent. Id. at 519. Accordingly, the Court finds that Cart Shield has not met its burden of showing that this conviction must be admitted under Rule 609(a)(2), and as such, the Court does not address the issue on the merits of whether a Florida conviction for failure to register as a sex offender involves a dishonest act or false statement.

Third, Dingman claimed that his conviction could not be admissible under Rule 609(a)(1) because its probative value was substantially outweighed by the danger of unfair prejudice. Th court again agreed with him, concluding that

In the Court's view, once the jury learns that Dingman is a convicted sex offender, the risk of undue prejudice will be instantly generated. Thus, the Court will permit Cart Shield to introduce evidence that Dingman has a felony conviction for failure to advise authorities of a prior felony conviction. This will permit the jury to understand the general nature of the offense—failing to comply with a notice or registration requirement concerning a prior felony—while excluding the potentially devastating evidence about the inflammatory nature of the underlying offense (i.e., excluding evidence that Dingman is a sex offender).

-CM