United States District Court, E.D. Pennsylvania
March 1, 2004.
UNITED STATES OF AMERICA
The opinion of the court was delivered by: BERLE M. SCHILLER, District Judge
MEMORANDUM AND ORDER
Presently before the Court are Defendant Johnnie Corley's motion to
preclude the Government from introducing evidence of his prior
convictions under Federal Rule of Evidence 609 and the Government's
motion to admit one such conviction under Rule 404(b). For the reasons
set out below, the Court grants Defendant's motion and denies the
I. EVIDENCE OF PRIOR CONVICTIONS UNDER RULE 609
Defendant is charged with armed bank robbery, conspiracy to commit
armed bank robbery, use of a firearm during a crime of violence, and
aiding and abetting each of these offenses. Within the last ten years, he
has been convicted of four crimes that he seeks to exclude from evidence:
receiving stolen property; criminal conspiracy related to drug
trafficking; possession of a controlled substance with intent to
distribute; and carrying a firearm without a license.*fn1
Federal Rule of Evidence 609 provides that evidence of a prior felony
conviction within the preceding ten years may be used to impeach a
defendant-witness "if the court determines that the probative value of
admitting this evidence outweighs its prejudicial effect to the accused."
FED. R. EVID. 609(a)(1). In addition, any conviction for a crime that
"involved dishonesty or false statement" is per se admissible for
impeachment purposes. FED. R. EVID. 609(a)(2).
Defendant argues that the four convictions at issue are inadmissible
under both 609(a)(2) and 609(a)(1) because these crimes were not
crimen falsi and their prejudicial value outweighs their
probative value. In response, the Government does not attempt to argue
that any of the prior convictions are admissible under
Rule 609(a)(2);*fn2 rather, the Government maintains that the convictions are
probative of Defendant's credibility and should therefore be admitted
under Rule 609(a)(1).
The Third Circuit has stated that relevant factors in judging the
probative value of prior convictions under Rule 609(a)(1) include: (1)
the nature of the convictions; (2) the recentness of the convictions; (3)
the importance of the defendant's testimony; and (4) the degree to which
the defendant's credibility is central to the case. Gov't of Virgin
Islands v. Bedford, 671 F.2d 758, 761 n.4 (3d Cir. 1982). In this
case, the first factor weighs against admissibility because Defendant's
prior convictions are for drug crimes, receipt of stolen property, and a
firearms violation crimes that
involve dangerous acts but do not bear significantly on Defendant's
veracity under oath.*fn3 The second, third, and fourth factors weigh
somewhat in favor of admissibility, for the convictions are as little as
three years old, and Defendant's testimony and credibility will be
important to the case should he choose to take the stand. Regarding the
prejudicial impact, however, the receipt of stolen property and firearms
charges are similar enough to the current charges of armed robbery and
illegal use of a firearm that the prejudice resulting from their
admission may be particularly severe, leading the jury to the
impermissible inference that Defendant has a propensity to commit such
crimes. United States v. Hems, 738 F.2d 88, 94 (3d Cir. 1984)
(upholding trial court's exclusion of assault conviction due to its
similarity to pending bank robbery charge); United States v.
Paige, 464 F. Supp. 99, 100 (E.D. Pa. 1978) ("Because [admission of]
the prior conviction would be highly prejudicial and improper, prior
similar crimes generally are not admitted unless strong reasons exist for
disclosure."). Admission of this evidence would therefore expose
Defendant to one of the dangers that Rule 609(a)(1) was specifically
designed to protect against. See FED. R. EVID. 609, Advisory
Committee's Note to 1990 Amendments ("[T]he danger that prior convictions
will be misused as character evidence is particularly acute when the
defendant is impeached. . . ."). Thus, the Court finds that
Defendant's prior convictions are inadmissible under Rule 609 because
their prejudicial impact outweighs their probative value.
II. EVIDENCE OF PRIOR CONVICTION UNDER RULE 404(b)
The Government seeks to introduce into evidence Defendant's conviction
for illegal gun possession under Federal Rule of Evidence 404(b).
Rule 404(b) prohibits the introduction of prior acts or convictions "to prove
the character of a person in order to show action in conformity
therewith" but permits their use to prove that the defendant possessed,
inter alia, the knowledge or intent required to convict him.
The Government clearly seeks to introduce Defendant's prior conviction
solely to show that he carried a gun during the bank robbery. As the
Government's brief states: "The fact that Corley possessed a gun on a
prior occasion shows he was familiar with firearms and not averse to
handling them." (Govt's Resp. at Part IV (unpaginated).) Although the
Government makes cursory attempts to cast this evidence as relevant to
Defendant's intent or knowledge, these arguments are no more than
conclusory statements irreconcilable with the Government's actual
proposed use of the conviction, i.e. to prove that Defendant has
a history of carrying illegal weapons in order to demonstrate actions in
conformity with that history. Accordingly, this conviction is
inadmissible under the plain text of Rule 404(b). United States v.
Morley, 199 F.3d 129, 134 (3d Cir. 1999) (holding that admission of
prior acts introduced to imply that defendant was guilty "merely because
he had previously engaged in `similar' impropriety . . . is the very
evil that Rule 404(b) seeks to prevent"); United States v.
Scarfo, 850 F.2d 1015, 1019 (3d Cir. 1988) ("[W]e will `refuse to
admit evidence of prior criminal acts which has no purpose except to
infer a propensity or disposition to commit crime.'") (quoting Gov't
of Virgin Islands v. Toto, 529 F.2d 278, 283 (3d Cir. 1976));
see also FED. R. EVID. 404, Advisory Committee's Note
(describing types of character evidence prohibited by Rule).
For the reasons stated above, the Court grants Defendant's motion to
exclude his prior convictions under Federal Rule of Evidence 609 and
denies the Government's motion to admit his firearm conviction under
Rule 404(b). An appropriate Order follows.