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United States v. Slade

United States District Court, Third Circuit

November 1, 2013

UNITED STATES OF AMERICA
v.
MICHAEL A. SLADE, JR.

MEMORANDUM

R. BARCLAY SURRICK, Judge.

Presently before the Court is the Government’s Amended Motion in Limine and Memorandum of Law to Admit Evidence of Similar Crimes and Acts Pursuant to Rule 404(b) of the Federal Rules of Evidence (ECF No. 151), the Government’s Motion and Memorandum of Law to Allow Impeachment of the Defendant Pursuant to Rules 608(b) and 609 of the Federal Rules of Evidence (ECF No. 148), and Defendant Michael A. Slade, Jr.’s Motion in Limine and Memorandum of Law to Preclude Extrinsic Evidence and Rule 404(b) Prior Bad Acts (ECF No. 168). For the following reasons, the Government’s Motion to Admit Evidence of similar Crimes and Acts will be granted in part and denied in part, the Government’s Motion to Allow Impeachment of the Defendant will be granted, and Defendant’s Motion in Limine will be granted in part and denied in part.

I. BACKGROUND

On January 22, 2013, a federal grand jury returned a sixty-seven count Superseding Indictment against Dorothy June Brown, Joan Woods Chalker, Michael A. Slade, Jr., Courteney L. Knight, and Anthony Smoot. (Superseding Indictment (“Indictment”), ECF No. 47.)[1] These charges arise out of an alleged scheme perpetrated by Brown to defraud three separate charter schools out of over $6.7 million.

Defendant Slade is charged with conspiracy to obstruct justice, in violation of 18 U.S.C. § 371 (Count 53), and with two substantive counts of obstruction of justice in violation of 18 U.S.C. §§ 1519 and 2 (Counts 59, 64). The Government intends to prove the conspiracy charge with evidence that Defendant created false documents in 2009 that made it appear as if a person had served on the Agora Board of Directors in 2005, 2006, and 2007, when this was not true. (Gov’t’s Limine Mot. 1.) The obstruction of justice charge in Count 59 alleges that on February 28, 2010, Defendant knowingly fabricated a document entitled “School Owned Vehicles” of Main Line Academy. (Id.; Indictment 61.) The document made it falsely appear as if the school had adopted a policy on July 1, 2005 that permitted Main Line Academy staff members to be provided with vehicles. (Indictment 61.) Finally, the obstruction of justice charge in Count 64 alleges that Defendant, in April 2010, knowingly created a false board resolution for the Laboratory Charter School that agreed to lend up to $100, 000 to the Agora Cyber Charter School. (Indictment 66.) The allegations supporting the two obstruction of justice charges are also alleged as overt acts in the conspiracy to obstruct justice charged in Count 59.

This Memorandum addresses three Motions. On October 10, 2013, the Government filed an Amended Motion and Memorandum of Law to Admit Evidence of Similar Crimes and Acts Pursuant to Rule 404(b) of the Federal Rules of Evidence. (Gov’t’s Limine Mot., ECF No. 151.) On October 21, 2013, Defendant filed a response to the Motion. (Def.’s Limine Resp., ECF No. 167.) On October 4, 2013, the Government filed a Motion and Memorandum of Law to Allow Impeachment of the Defendant Pursuant to Rules 608(b) and 609 of the Federal Rules of Evidence. (Gov’t’s Impeach Mot., ECF No. 148.) On October 21, 2013, Defendant filed a response to the Motion. (Def.’s Impeach Resp., ECF No. 166.) Finally, on October 21, 2013, Defendant filed a Motion in Limine and Memorandum of Law to Preclude Extrinsic Evidence and Rule 404(b) Prior Bad Acts. (Def.’s Limine Mot., ECF No. 168.) The Government filed a reply on October 30, 2013. (Gov’t’s Reply, ECF No. 191.)

The Government requests that the Court permit it to introduce evidence at trial “[t]o establish the defendant’s knowledge, intent, and lack of mistake” with regard to the allegations in the Indictment. (Gov’t’s Limine Mot. 2.) Specifically, the Government seeks to introduce evidence demonstrating that, in 2005, Defendant obtained a false criminal history report in conjunction with applying for a teacher position at the Laboratory Charter School. (Id.) Defendant submitted the social security number and date of birth of his father, who has the same name as Defendant, to obtain a criminal background check. (Id.) It is alleged that Defendant did this to conceal a 2003 criminal conviction. (Id.) On June 23, 2003, Defendant entered a plea of guilty to access device fraud, a felony, and possession of a controlled substance, a misdemeanor. (Id.; see also Id . at Ex. 1.)[2] He was sentenced to nine months probation. Defendant’s use of his father’s information resulted in the return of a criminal background check issued by Pennsylvania State Police on August 30, 2005 that revealed no prior criminal record. (Gov’t’s Limine Mot. 3.)

The Government also seeks to admit evidence that, in 2012, Defendant provided auditors from Laboratory Charter School with a photocopy of the August 30, 2005 criminal background check. However, Defendant altered the document to reflect his own social security number and date of birth instead of his father’s identifying information. (Gov’t’s Limine Mot. 3.) Defendant was at that time the CEO of the Laboratory Charter School. The auditors questioned the validity of the criminal background check, noting that the social security number and birthdate had been altered. (Id. at Ex. 2.) In their report, the auditors stated that on July 12, 2012, when Defendant was interviewed by the District’s Office of Inspector General, he stated that the criminal background check that was provided to the auditors was accurate and not altered. (Id.)

Finally, the Government seeks to admit evidence that Defendant falsely represented his educational background in email communications, on a social networking site, and in a school-related document. (Gov’t’s Limine Mot. 3.) Specifically, from at least 2011 through October 2013, Defendant represented that he earned a doctorate in education when in fact he has not. His LinkedIn page states that he attended Widener University from 2006 through 2010 and earned his doctorate degree. (Id. & Ex. 3.) In addition, on August 1, 2011, he signed a certification as CEO of the Laboratory Charter School entitled “Assurance for Compliance with the Public Official & Employee Ethics Act, ” on which the signature line indicated that he was a Doctor of Education. (Id. at Ex. 4.) The Government also seeks to admit emails between Defendant and other individuals concerning the Laboratory Charter School, in which Defendant’s signature block states “Michael A. Slade Ed. D.” (Id. at Ex. 5.)

With regard to the 2003 felony conviction for access device fraud, the Government requests that the Court permit it to use the conviction for impeachment purposes to the extent that Defendant testifies at trial. The Government states that both the nature of the conviction, as well as Defendant’s attempts to hide the conviction in 2005 and 2012 are proper subjects for cross examination of Defendant.

II. GOVERNMENT’S MOTION TO IMPEACH

In its Motion to Impeach, the Government argues that it should be permitted to cross-examine Defendant about his prior conviction for access device fraud if Defendant chooses to testify at trial. The Government contends that the conviction is admissible under Rule 609 of the Federal Rules of Evidence. (Gov’t’s Impeach Mot. 2.)

A. Legal Standard

Rule 609, which governs the use of convictions for purposes of impeachment, provides that a prior criminal conviction may be used to attack a criminal defendant’s character for truthfulness if: (1) the crime was punishable by death or by imprisonment for more than one year; and (2) the probative value of the evidence outweighs its prejudicial effect. Fed.R.Evid. 609(a)(1). The Third Circuit has stated that “Rule 609(a)(1) is absolutely clear and explicit in requiring the trial court, before admitting the evidence of a prior conviction, to make the determination that the probative value of the evidence outweighs its prejudicial effect to the defendant.” Virgin Islands v. Bedford, 671 F.2d 758, 761 (3d Cir. 1982). Factors for the district court to consider when making this determination include: “(1) the kind of crime involved; (2) when the conviction occurred; (3) the importance of the witness’ testimony to the case; and (4) the importance of the credibility of the defendant.” United States v. Greenidge, 495 F.3d 85, 97 (3d Cir. 2007). The Government bears the burden of persuading the court that the probative value of the evidence outweighs its prejudicial effect. Bedford, 671 F.2d at 761.

If the prior conviction involves a “dishonest act or false statement, ” then Rule 609 provides that the evidence is automatically admissible and may be used to impeach the defendant regardless of whether it is determined that the probative value of the evidence outweighs the prejudicial effect. Fed.R.Evid. 609(a)(2). Crimen falsi convictions are not subject to the general balancing test of Rule 403. United States v. Wong, 703 F.2d 65, 67 (3d Cir. 1983).

Finally, Rule 609(b) provides that evidence of a conviction is generally inadmissible if more than ten years have elapsed since the date of the defendant’s conviction or release from confinement, whichever is later. Fed.R.Evid. 609(b). However, the district court has discretion to admit the prior conviction if it determines that “its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.” Id. at 609(b)(1). In making this determination, the district court applies the criteria used under Rule 609(a). United States v. D’Agata, 646 F.Supp. 390, 391 (E.D. Pa. 1986). These factors include: the kind of crime involved, when the conviction occurred, the importance of the witness’s testimony to the case, and the importance of the credibility of the defendant. Id.

B. Analysis

Defendant concedes that his felony conviction for access device fraud satisfies Rule 609(a). (Def.’s Impeach Resp. 2.) The only remaining issue disputed by the parties is whether or not Rule 609(b) is applicable, and if it is, whether the conviction is admissible under that section of the Rule. Rule 609(b) excludes convictions if more than ten years has passed since the defendant’s conviction or release from confinement, whichever is later, unless the Court concludes that, in light of the specific facts and circumstances surrounding the conviction, the probative value of the evidence substantially outweighs the prejudicial effect. Fed.R.Evid. 609(b). Defendant contends that his guilty plea is more than 10 years old and should therefore be barred because the prejudicial effect of this evidence substantially outweighs its probative value. (Def.’s Impeach Resp. 2) Defendant was convicted of access device fraud on June 23, 2003 and sentenced to nine months probation. Defendant argues that the ten-year time period in Rule 609(b) ran on June 23, 2013. The Government argues that the ten years did not begin to run until Defendant was released from probation, and that “[c]alculating the time period from the date of the expiration of [Defendant’s] 9-month term of probation would make the access device fraud conviction timely under Rule 609(b).” (Gov’t’s Impeach Mot. 4.)[3]

The Third Circuit has not yet had occasion to decide whether the ten-year period in Rule 609(b) is calculated from the conclusion of a defendant’s probationary period, or from some other time. Other circuit courts that have looked at this issue have concluded that “release of confinement” for purposes of the ten-year time limit does not include periods of probation. See United States v. Stoltz, 683 F.3d 934, 939 (8th Cir. 2012); United States v. Rogers, 542 F.3d 197, 201 (7th Cir. 2008); United States v. Daniel, 957 F.2d 162, 168 n.3 (5th Cir. 1992). District courts within the Third Circuit have similarly concluded that a defendant’s term of probation is not included in calculating the ten-year time period. See Prater v. City of Phila., No. 11-667, 2012 U.S. Dist. LEXIS 128224, at *10 n.2 (E.D. Pa. Sept. 7, 2012); Wink v. Ott, No. 11-596, 2012 U.S. Dist. LEXIS 76261, at *4-5 (M.D. Pa. Jun 1, 2012); United States v. Butch, 48 F.Supp.2d 453, 465 (D.N.J. 1999). But see Trindle v. Sonat Marine Inc., 697 F.Supp. 879, 881 n.4 (E.D. Pa. 1988) (noting that the ten-year period referenced in Rule 609(b) does not begin to run until the conclusion of probation).[4] In addition, the Third Circuit has, in dicta, indicated that the time period for Rule 609 begins to run from the time the defendant is “released from prison.” See Hans, 738 F.2d at 93 (“Normally such evidence [under Rule 609] is admissible only if either the conviction or the witness’ release from prison occurred within 10 years of the trial.”). Based upon the language of the Rule, the Court’s observation in Hans, and the trend of other courts that have ruled on the issue, we are satisfied that the Third Circuit will join the other circuit courts in holding that the ten-year time period contained in Rule 609(b) does not include periods of probation. Accordingly, we conclude that Defendant’s felony conviction for access device fraud is more than 10 years old, and therefore, Rule 609(b) applies.

Our inquiry does not end there. The conviction may nevertheless be admissible for purposes of impeachment if we determine that the probative value of this evidence substantially outweighs the prejudicial effect. Fed.R.Evid. 609(b)(1). In making this determination, we consider the kind of crime involved, when the conviction occurred, the importance of Defendant’s ...


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