United States v. Fearwell
595 F.2d 771 (D.C. Cir. 1978)
 

WRIGHT, C.J. This appeal comes to us from the United States District Court for the District of Columbia, where appellant Steven Fearwell was convicted under 18 U.S.C. 371 (1976) of conspiracy to violate the Food Stamp Act, 7 U.S.C. 2023 (1976). On February 14, 1978 appellant was sentenced to a prison term of from 20 months to five years to run concurrently with any other sentence he was then serving. Prior to trial the prosecution informed defense counsel that, if appellant chose to testify, it intended to impeach his credibility by introducing evidence of his prior conviction of attempted petit larceny, and the trial court ruled that it would permit the prosecution to proceed with the impeachment as planned. Accordingly, it is argued on appeal, Fearwell, who was to have been the only witness to appear in his own behalf, decided not to testify. Further, the trial court, after making this ruling but before being informed that appellant would not testify, refused to grant a continuance so that counsel could devise a new defense strategy involving other witnesses.

Fearwell appeals from both rulings of the District Court and asks that his conviction be set aside. We agree that, under Federal Rule of Evidence 609(a), impeachment with evidence of the prior conviction involved in this case should not be permitted. Hence the trial judge was incorrect in ruling that the prosecution would be able to proceed, as planned, with its impeachment of Fearwell if he chose to testify. But because we do not know what Fearwell's testimony would have been, we cannot yet determine whether this error requires setting aside the conviction. Hence we remand to the District Court to determine the nature of his testimony. Finally, in our view the trial court did not err by refusing to grant a continuance.

I. BACKGROUND

Appellant's conviction of conspiracy to violate the Food Stamp Act was in connection with an illegal scheme to use Authorization to Purchase (ATP) cards of the federal Food Stamp Program for personal gain. Under the Food Stamp Program the issuing agency--in the District of Columbia, the Department of Human Resources--sends ATP cards each month to all persons eligible for food stamps. These cards state that if the recipient pays a specified amount he or she will receive foods stamps valued at a greater amount. For example, the card may say that a payment of $40 will result in receipt of food stamps valued at $100.

There are, of course, a certain number of intended recipients of these cards who have perhaps died or moved, and who are at any event no longer resident at the address to which a card was sent. Cards sent in such cases are returned to the Department of Human Resources. Appellant's brother, Joseph Fearwell, was employed by the Department of Human Resources from September 1974 to July 1975, and one of his assigned tasks was to transport the returned cards from one floor of the Department to another. After terminating employment with the Department in July 1975, Joseph Fearwell regularly visited the Department and began to remove a number of the returned ATP cards on many of his visits. Once having removed the cards, it was quite simple for Joseph Fearwell to translate the stolen cards into food stamps and quite a handsome profit.

After a time, according to the Government's case, Joseph Fearwell started to supply stolen ATP cards to his brother, appellant here, who likewise began redeeming the stolen cards for stamps and then selling the stamps for profit. Joseph and Steven Fearwell were not, however, content to operate alone; they apparently feared that their repeated trips to redeem the ATP cards might arouse suspicion. Consequently, they enlisted the help of Ms. Yvonne Mason, a teller at the Friendship House Federal Credit Union. The agreement struck among the brothers Fearwell and Ms. Mason specified a fixed sum--apparently five dollars--that she would receive from the brothers for each stolen ATP card she redeemed in her capacity as clerk at the Credit Union. She testified that for a period ranging from mid-1976 to early 1977 one of the brothers would present her with a packet of cards two or three times a week, which she was happy to redeem for stamps so long as she was paid the agreed upon amount. Indeed, the record indicates that 99 stolen ATP cards, worth over $10,000, were redeemed through Ms. Mason in the relevant period, and that the cards bore a certain similarity in signatures. A handwriting expert for the prosecution testified that the similarity on many of the cards was attributable to a single person's having supplied the various signatures, and that that person was Steven Fearwell.

II. IMPEACHMENT

Before introduction of evidence had commenced at Steven Fearwell's trial, and out of the range of the jury, defense counsel informed the trial judge that the prosecution intended, if Fearwell chose to testify, to impeach his testimony with evidence of a prior conviction of attempted petit larceny. Defense counsel asked the judge to rule that the conviction could not be used to impeach because "[i]t is a minor offense and is his only prior conviction to my knowledge.'' The prosecution, wishing to use the prior conviction "purely for impeachment,'' argued in response that the crime of attempted petit larceny "involve[s] dishonesty[ ] and, as such, ... goes to the defendant's credibility.'' Further, the prosecution reasoned, attempted petit larceny "is not a particularly inflammatory type of conviction,'' so presumably nothing would be lost and much would be gained by using the conviction for impeachment purposes. Defense counsel retorted, but without elaboration, that Fearwell intended to be the only witness in his own behalf. Yet when the trial judge specifically asked defense counsel whether Fearwell would testify notwithstanding the prospect of being impeached, counsel's only response was that "I believe he intends to. He wants to.''

This discussion among the trial judge, the prosecutor, and defense counsel did not, in terms, include a direct reference to the legal rule that governed the perplexity confronting them, Federal Rule of Evidence 609(a), or to this circuit's leading case construing Rule 609(a), United States v. Smith, 179 U.S. App. D.C. 162, 551 F.2d 348 (1976)....

To be admitted under Rule 609(a)(1), the prior conviction must have been "punishable by death or imprisonment in excess of one year.'' There is no indication in the record that Fearwell's prior conviction was anything other than the misdemeanor of attempted petit larceny, and counsel at oral argument suggested that the attempted petit larceny was committed in the District of Columbia. The language of the provision in the District of Columbia Code in which petit larceny is described stipulates that a person convicted under its authority faces punishment of imprisonment "for not more than one year.'' 22 D.C. Code 2202 (1973). As a general category of crime, moreover, in no matter what jurisdiction, the misdemeanor of attempted petit larceny would not likely be punishable in more severe terms. Indeed, a leading text on criminal law points out that petit larceny is normally classified as "a misdemeanor with a maximum punishment of six months imprisonment.'' W. LaFave & A. Scott, Criminal Law 634 (1972). Accordingly, it is clear that Rule 609(a)(1) does not apply, because that subsection of the rule requires, inter alia, that the crime underlying the prior conviction be "punishable by death or imprisonment in excess of one year.''

We are left with Rule 609(a)(2). Under this prong the trial judge must permit use of the prior conviction for impeachment purposes if the crime underlying the conviction involved "dishonesty or false statement, regardless of the punishment.'' This court, in United States v. Smith, supra, held that the crime of attempted robbery did not qualify for automatic admission pursuant to Rule 609(a)(2), because that crime involves no "dishonesty or false statement,'' as required by that subsection of the rule. "[D]ishonesty or false statement,'' the court concluded, was clearly intended by Congress "to denote a fairly narrow subset of criminal activity.'' 179 U.S. App. D.C. at 176, 551 F.2d at 362. In reaching this conclusion the court in Smith relied on the Conference Committee Report, which described "dishonesty or false statement'' in terms of "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 Smith case, to be sure, involved the crime of attempted robbery, not attempted petit larceny. But since Smith was handed down this court has decided United States v. Dorsey, 591 F.2d 922 (D.C. Cir. 1978), in which it was held that the crime of shoplifting as defined in Article 27, Section 551A(a)(1) of the Maryland Code did not involve the deceit requisite to meeting Rule 609(a)(2)'s rigid standard. As the court wrote in Dorsey, "At worst, this type of shoplifting offense, like many petty larceny crimes, involves stealth, which Smith makes clear is not the same as deceit.'' 591 F.2d at 935 (emphasis added). The District of Columbia Code, relevant to the present case, defines petit larceny as "feloniously tak[ing] and carry[ing] away any property of value of less than $100....'' 22 D.C. Code 2202 (1973). Because there is no suggestion of fraud or deceit as an element, this offense would seem to fit Dorsey's distinction between crimes involving stealth and those involving deceit. Indeed, unless specified to the contrary in the controlling statute, it would seem that petit larceny does not involve the requisite deceit to qualify for admission under Rule 609(a)(2).(1)8

To understand why attempted petit larceny is outside the scope of Rule 609(a)(2), we must turn, as this court did in Dorsey, to the Smith case, which penetratingly analyzed the nature of Rule 609(a)(2). In that case, as we have pointed out, the court held that attempted robbery did not qualify as a crime involving "dishonesty or false statement.'' But Smith went further by rendering most succinctly the crimes that could be used to impeach under Rule 609(a)(2): "those crimes characterized by an element of deceit or deliberate interference with a court's ascertainment of truth.'' United States v. Smith, supra, 179 U.S. App. D.C. at 177, 551 F.2d at 363. This language penetrates to the core of Rule 609(a)(2) because it closely tracks the intent of Congress as evidenced by language in the Conference Committee Report that describes "dishonesty or false statement.'' The Report focuses on crimes "bearing on the accused's propensity to testify truthfully.''

Building on the solid foundation of Smith, and on application of Smith's analysis to the crime of shoplifting in Dorsey, we conclude today that the crime of petit larceny does not involve dishonesty or false statement. Thus it is covered by neither Rule 609(a)(1) nor Rule 609(a)(2). This crime, like multifarious others of a similar nature, simply has no bearing whatever on the "accused's propensity to testify truthfully.'' H.R. Conf. Rep. No. 93-1597, [1974] U.S. Code Cong. & Ad. News at 7103. Accordingly, evidence of a prior conviction for petit larceny may not be admitted for the purpose of attacking the credibility of a witness....

... Rule 609(a)(2) is to be construed narrowly; it is not carte blanche for admission on an undifferentiated basis of all previous convictions for purposes of impeachment; rather, precisely because it involves no discretion on the part of the trial court, in the sense that all crimes meeting its stipulation of dishonesty or false statement must be permitted to be used for impeachment purposes, Rule 609(a)(2) must be confined, in the words of Smith, to a "narrow subset of crimes''--those that bear directly upon the accused's propensity to testify truthfully. Quite simply, attempted petit larceny is not within this subset....

1. 8. Smith and Dorsey leave open the possibility "that Rule 609(a)(2) may be operative if the prosecution can show that, although the prior crime was not characterized by an element of fraud or deceit, it nonetheless was committed by such means.'' United States v. Dorsey, 591 F.2d 935 (1978); see United States v. Smith, 551 F.2d at 364 n.28.

 


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