United States District Court, M.D. Pennsylvania
ANTHONY L. TENON, Plaintiff
WILLIAM DREIBELBIS, et al., Defendants
William W. Caldwell United States District Judge.
Anthony L. Tenon, an inmate at the Forest state correctional
institution, filed this 42 U.S.C. § 1983 civil-rights
suit alleging Eighth Amendment medical claims arising from
treatment he received for a broken jaw while he was confined
at the Smithfield state correctional institution. His claim
that defendant Ronald Long, M.D., failed to provide pain
medication and a soft diet is scheduled for trial.
has filed a motion in limine to exclude from evidence his
convictions for the following offenses: (1) 2001 convictions
for criminal attempt and conspiracy to commit burglary; (2)
2005 convictions for rape of a person less than thirteen
years of age, involuntary deviate sexual intercourse with a
person less than thirteen years of age, endangering welfare
of children, corruption of minors, and incest.
filed a brief in support of the motion, and Defendant filed a
brief in opposition. Plaintiff did not file a reply brief.
Also, neither party has supplied us with a record documenting
the convictions or showing which convictions are the cause of
says the convictions are admissible under Fed. R. of Evid.
609 to impeach Plaintiff's testimony at trial. In
pertinent part, to assess a witness's credibility, Rule
609(a)(1)(A) requires that the witness's conviction for a
crime punishable by imprisonment for more than one year be
admitted into evidence, “subject to Rule 403.”
Fed.R.Evid. 403 provides: “The court may exclude
relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting
different rule applies to convictions over ten years old or
when more than ten years have passed since the witness was
imprisoned on the conviction. In pertinent part, under Rule
609(b)(1), “if more than 10 years have passed since the
witness's conviction or release from confinement for it,
whichever is later[, ] [e]vidence of the conviction is
admissible only if: (1) its probative value, supported by
specific facts and circumstances, substantially outweighs its
609(b)(1) reverses the balancing that occurs under Rule 403.
Womack v. Smith, No. 06-CV-2348, 2012 WL 1245752, at
*3 (M.D. Pa. Apr. 13, 2012). “Whereas under Rule 403
unfair prejudice must substantially outweigh the
evidence's probative value, for convictions over ten
years old, the probative value of the conviction must
substantially outweigh the prejudicial effect.”
Id. “The Advisory Committee Notes for Rule
609(b) emphasize that ‘convictions over 10 years old
will be admitted very rarely and only in exceptional
circumstances.'” See United States v.
Ponder, No. 16-CR-0056, 2017 WL 2633467, at *1 (M.D. Pa.
Jun. 16, 2017)(quoting United States v. Shannon, 766
F.3d 346, 352 n.9 (3d Cir. 2014)).
other arguments, Plaintiff contends that the convictions
should be excluded on the following grounds. First, the
convictions in 2001 for criminal attempt and conspiracy to
commit burglary are more than ten years old and should be
excluded under Rule 609(b)(1). Second, the 2005 convictions
are also more than ten years old and should also be excluded
under Rule 609(b)(1). Third, the 2005 convictions are of such
a heinous nature that they would bias the jury against
Plaintiff and prevent them from properly assessing the
factual issues. Further, while a limiting instruction can
sometimes count toward admission of the convictions,
sometimes limiting instructions are not enough, and that is
true here, given the nature of the 2005 crimes.
opposition, Defendant asserts that credibility is a critical
issue in this case, so the convictions should be admitted as
relevant to Plaintiff's credibility. He also argues that
Rule 609(b)(1) does not apply because Plaintiff is
incarcerated and the ten-year time frame would only start
running from the date of his release from confinement, not
from the date of his conviction. Further, Plaintiff's
concerns about the nature of the 2005 convictions can be
obviated by admitting into evidence, not the names of the
convictions, but only “the number of times the prisoner
has been convicted of a felony and the length of the
incarceration associated with the felony convictions.”
(Doc. 135, Def.'s Opp'n Br. at p. 1). This would
prevent the jury from being biased by the nature of the
convictions while at the same time allowing Defendant to
submit evidence bearing on Plaintiff's credibility.
agree with Defendant that Rule 609(b)(1) does not apply to
the 2005 convictions as we think Plaintiff fairly admits, at
least for the purpose of the current motion, that he is
currently incarcerated on these convictions and so the
ten-year period in Rule 609(b)(1) has not yet started to run.
(Doc. 134, Pl.'s Br. in Supp. at p. 3)(“There may
be no circumstance under which jurors are willing to award
damages to Mr. Tenon in this unrelated civil suit if evidence
of the convictions that led to his incarceration are
we think that Rule 609(b)(1) does apply to the 2001
convictions. Defendant, as the proponent of the evidence, has
the burden of showing that the convictions are admissible.
See Ponder, 2017 WL 2633467, at *2 (observing in a
criminal case that the government “‘bears the
burden of persuading the court that the evidence should be
admitted, i.e., that its probative value outweighs its
prejudicial effect.'”)(quoted case omitted).
Defendant has not shown that Plaintiff is still serving time
on these convictions. Rule 609(b)(1) thus applies. As noted,
convictions over ten years old will be admitted very rarely
and only in exceptional circumstances. We find no exceptional
circumstances and will grant Plaintiff's motion in limine
in regard to the 2001 convictions.
now to the 2005 convictions. Rule 609(a)(1)(A) requires us to
use Rule 403 in deciding whether to admit the convictions. In
employing Rule 403, the Third Circuit has:
directed that four factors should be weighed against the
potential for prejudice in admitting a conviction: (1) the
nature of the conviction; (2) the time elapsed since the
conviction; (3) the importance of the witness's testimony
to the case; ...