The opinion of the court was delivered by: MENCER
The case presently before the Court is a civil action wherein the plaintiff is seeking damages for personal injuries. Jacob Tussel has alleged that he was injured when, on February 28, 1978, he drove a tanker truck loaded with carbolic acid to Witco's Bradford, Pennsylvania plant for unloading. More specifically, he claims he was burned when a hose being used to unload the acid ruptured as a result of the negligence of a Witco employee. The case has proceeded through the pre-trial conference stage and trial is set to begin on March 22, 1983.
Tussel has filed with this Court a motion in limine seeking an order prohibiting Witco from attacking his credibility by way of cross-examination regarding his guilty plea in 1978 to a charge of conspiring to import a controlled substance. The charge to which Tussel plead guilty is one which carries the potential for imprisonment in excess of one year. 21 U.S.C. §§ 952, 960, 963 (1981).
The issue raised by Tussel requires an examination of Rule 609 of the Federal Rules of Evidence.
The rule provides:
(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.
In order to apply the rule correctly we must look first to Fed.R.Evid. 609(a) (2) which mandates the admission of all convictions
of any crime involving dishonesty or false statement.
The Conference Committee Report on the final compromise version of this rule explained the use of the phrase dishonesty or false statement as meaning "crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully.
The term "crimen falsi"
involves the element of falsehood, and includes everything which has a tendency to injuriously affect the administration of justice by the introduction of falsehood and fraud. A crime less than a felony that by its nature tends to cast doubt on the veracity of one who commits it. This phrase is also used as a general designation of a class of offenses, including all such as involve deceit or falsification; e.g., forgery, counterfeiting, using false weights or measures, perjury, etc. Includes forgery, perjury, subornation of perjury, and offenses affecting the public administration of justice.
Black's Law Dictionary 446 (rev. 4th ed. 1968) (citations omitted).
Both the courts and commentators have expressed differing opinions regarding the applicability of the crimen falsi description to a narcotics conviction for the purpose of invoking Fed.R.Evid. 609(a) (2). See United States v. Lewis, 200 U.S. App. D.C. 76, 626 F.2d 940 (D.C.Cir. 1980); United States v. McLister, 608 F.2d 785 (9th Cir. 1979); United States v. Hastings, 577 F.2d 38 (8th Cir. 1978); United States v. Hayes, 553 F.2d 824 (2d Cir. 1976), cert. denied, 434 U.S. 867, 54 L. Ed. 2d 143, 98 S. Ct. 204 (1977); and 3 J. Weinstein & M. Berger, Weinstein's Evidence para. 609 (1981); 3 D. Louisell & C. Mueller, Federal Evidence § 317 (1979 & Supp. 1982). The Courts in both Hastings and Hayes suggest that a district court may look to the underlying factors regarding the narcotics conviction in order to determine whether it was a crimen falsi offense. "We are satisfied that a conviction on a narcotics charge is not a crime which 'involves dishonesty or false statement' within the meaning of Rule 609(a) (2) at least where there has been no showing that the particular prior conviction rested on facts warranting the 'dishonesty or false statement' description." Hastings, 577 F.2d at 41 (citations omitted) (emphasis added). "Appellant's conviction was for the importation of cocaine, a crime in the uncertain middle category -- neither clearly covered nor clearly excluded by the second prong test -- and thus one as to which the Government must present specific facts relating to dishonesty or false statement." Hayes, 553 F.2d at 827. In what appears to be the most recent decision on this issue the District of Columbia Circuit rejects, as an improper methodology for applying Rule 609(a) (2), inquiry by a district court into the manner in which a crime was committed. The Court instead interprets the rule "to require that the crime 'involved dishonesty or false statement' as an element of the statutory offense." Lewis, 626 F.2d at 946 (emphasis in original). We agree that this is the most desirable approach to an application of Fed.R.Evid. 609 (a) (2). An earlier decision of the District of Columbia Circuit is instructive on this point.
Although it may be argued that any willful violation of law, such as . . . the unlawful possession of narcotics, evinces a lack of character and a disregard for all legal duties, including the obligation of an oath, Congress has not accepted that expansive theory. On the contrary, . . . Congress has "narrowly defined" the offenses comprehended by Rule 609(a) (2).
United States v. Millings, 175 U.S. App. D.C. 293, 535 F.2d 121, 123 (D.C. Cir. 1976). The expansive theory embraced by proponents of a flexible application of the definition of crimen falsi offenses would, if carried to its logical extreme, result in the admissibility for impeachment purposes of all prior convictions for intentional violations of law. It is clear from the Conference Committee Report that Congress recognized a distinction between "offenses in the nature of crimen falsi" and other criminal offenses. Congress found the former to be "peculiarly probative of credibility" and, therefore, convictions of such offenses are "always to be admitted."
We find the distinction recognized by Congress valid for purposes of applying Rule 609(a) (2). We also find that the test enunciated in Lewis, 626 F.2d at 946, is a sound one. This test provides the most practical, efficient and consistent manner in which a trial judge can utilize the rule.
The offense for which Tussel was convicted does not contain an element involving dishonesty or false statement. 21 U.S.C. §§ 952, 963 (1981). Fed.R.Evid. 609(a) (2) is, therefore, inapplicable and the conviction is not admissible under that portion of Rule 609(a).
Evidence which does not fall within the ambit of Rule 609(a) (2) may nevertheless be admissible for impeachment purposes under the provisions of 609(a) (1). The prerequisites for use of a prior criminal conviction for impeachment purposes pursuant to Fed.R.Evid. 609(a) (1) are the conviction of a crime in the nature of a felony, i.e., "[a crime] punishable by death or imprisonment in excess of one year ", and a determination by the court "that the ...