United States v. Alexander
48 F.3d 1477 (9th Cir. 1995)
 

Thompson, Circuit Judge:

These are the consolidated appeals of defendants Gary Edward Alexander, Jonathan Harrington, Anthony F. Hicks and Willie James Harris. The defendants appeal their convictions for conspiracy to commit robbery, . . . armed bank robbery, . . . and use of a firearm during commission of a crime of violence. . . .

[D]efendant Hicks seeks reversal of his conviction on the ground that the district court erroneously admitted, for impeachment purposes, evidence of his prior drug and robbery convictions. . . . We affirm all convictions and all sentences.

Facts

On January 24, 1992, four armed men—all wearing blue coveralls, gloves, and ski masks—burst into the First Interstate Bank in Victorville, California. They ordered everyone present in the bank to lie down, forced two of the bank’s employees to open the vault, and emptied cash from the vault into a duffle bag. After taking the money, the robbers fled in a van. The total amount stolen was $331,951.

The police had been alerted to the robbery by a passerby. As a result, officers arrived at the scene in time to pursue the van as it left the bank. A high-speed chase ensued in which the occupants of the van fired several shots at the police.

Eventually, the van pulled into a K-Mart parking lot. The four robbers got out of the van and split up. Two of them got into a Camaro and the other two got into a Camry. The vehicles sped away in different directions, with the police in pursuit. The chase continued at speeds up to 110 miles per hour, with more shots being fired at the police from the fleeing vehicles.

Eventually, the Camaro stalled; defendants Harrington and Alexander were arrested inside the car. The Camry also came to a stop, but its occupants continued their flight on foot. After a brief chase, police arrested defendants Harris and Hicks a short distance from the abandoned Camry.

Remaining pertinent facts are discussed in relevant portions of the discussion that follows.

Discussion

. . .

III. ADMISSION OF PRIOR CONVICTIONS FOR IMPEACHMENT PURPOSES

Before trial, defendant Hicks filed a motion in limine to exclude evidence of his prior felony convictions for residential robbery and possession of rock cocaine for sale. The district court denied the motion, ruling that, if Hicks elected to testify, the evidence would be admissible for impeachment purposes, under Federal Rule of Evidence 609(a)(1), because its probative value outweighed its prejudicial effect.

At trial, Hicks chose to take the stand and present an alibi defense. He testified that he was in the vicinity of the arrests on the day of the robbery because he was scheduled to meet a friend there. He also said he ran away when he heard sirens and saw police cars because he was afraid of being arrested on two outstanding warrants for traffic violations. Purportedly for the same reason, he also gave the arresting officer a false name.

At the conclusion of his direct examination, Hicks again moved to exclude the evidence of his prior convictions. The district court and adhered to its original ruling and denied the motion. On cross examination, the prosecution elicited testimony from Hicks regarding the nature and dates of both prior convictions.

Hicks contends the district court erred in allowing the jury to hear evidence of his prior convictions. With regard to his prior robbery conviction, he argues United States v. Brackeen, 969 F.2d 827, 830 (9th Cir. 1992) (en banc) (per curiam), stands for the proposition that a prior robbery conviction cannot be used to attack a defendant’s credibility. We disagree. Federal Rule of Evidence 609(a) provides, in pertinent part, that evidence of prior convictions is admissible for purposes of attacking the credibility of a witness if the crime "(1) was [a felony], and the court determines the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement. . . ." Brackeen held only that, in this circuit, bank robbery is not per se a crime of dishonesty, and therefore prior robbery convictions are not admissible for impeachment purposes under Rule 609(a)(2). We did not foreclose in Brackeen the admission of a prior robbery conviction under the balancing test of Rule 609(a)(1).

Here, the government explicitly stated it intended to introduce both of Hick’s prior convictions under Rule 609(a)(1), and the district court specifically ruled on that basis by applying the appropriate balancing test. If the district court did not abuse its discretion when it concluded Hicks’s prior convictions were more probative of his credibility than prejudicial to his defense, the evidence of both of his prior convictions was properly admitted. United States v. Browne, 829 F.2d 760, 762 (9th Cir. 1987), cert. denied, 485 U.S. 991, 108 S. Ct. 1298, 99 L. Ed. 2d 508 (1988) (noting that a district court’s decision to admit evidence of prior convictions is reviewed for an abuse of discretion).

In United States v. Cook, 608 F.2d 1175, 1185 n.8 (9th Cir. 1979) (en banc), cert. denied, 444 U.S. 1034, 100 S. Ct. 706, 62 L. Ed. 2d 670 (1980), overruled on other grounds, Luce v. United States, 469 U.S. 38, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984), we outlined five factors that should be considered in balancing the probative value of a prior conviction against its prejudicial impact for purposes of Rule 609(a)(1): (1) the impeachment value of the prior crime; (2) the point in time of conviction and the defendant’s subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant’s testimony; and (5) the centrality of the defendant’s credibility. The government bears the burden of showing, based on these factors, that the proffered evidence’s probative value substantially outweighs its prejudicial effect.

Hicks does not dispute that the first factor favors admission of both his prior convictions. We have previously stated that "prior convictions for robbery are probative of veracity." The same is true of prior convictions for drug offenses.

Hicks stipulates that both his prior crimes were sufficiently recent to satisfy the second Cook factor. He was convicted of residential robbery, and was sentenced to a four-year prison term, in 1987. Shortly after his parole in 1988, he committed the drug offense, for which he received another four-year prison sentence. Less than a year later, he was arrested for the present crime. "By its terms, Rule 609 allows for admissibility of such . . . prior conviction[s] even where the defendant has been released for up to ten years." Browne, 829 F.2d at 763. See Fed. R. Evid. 609(b).

Hicks concedes that, as to his prior drug offense, the third factor is satisfied because the drug offense is sufficiently different from the present bank robbery. With regard to the prior residential robbery, the district court held that offense was similar to the charged bank robbery and, therefore, the third factor weighed in favor of excluding it. However, we have held that even "a prior ‘bank robbery conviction [is] not inadmissable per se, merely because the offense involved was identical to that for which [the defendant] was on trial.’ " What matters is the balance of all five factors.

Hicks contends that, contrary to the district court’s determination, the related fourth and fifth factors weigh against admission of his prior convictions. He contends his trial testimony was not particularly important and his credibility was not central to the case, because other evidence corroborated his alibi defense. We disagree. When a defendant takes the stand and denies having committed the charged offense, he places his credibility directly at issue.

In United States v. Bagley, 772 F.2d 482, 488 (9th Cir. 1985), cert. denied, 475 U.S. 1023, 106 S. Ct. 1215, 89 L. Ed. 2d 326 (1986), we held that admission of the defendant’s prior robbery convictions was an abuse of the district court’s discretion. But in that case we emphasized "the record [was] devoid of any evidence that [the defendant] intended to misrepresent his character or to testify falsely as to his prior criminal record." Id. Here, Hicks testified he ran from the police because he was afraid of being arrested on outstanding warrants for traffic violations. This testimony could reasonably have misled the jury into believing that, with the exception of some minor traffic infractions, Hicks had no previous trouble with the police. As we said in Cook:

[I]t is not surprising that the [district] court was unwilling to let a man with a substantial criminal history misrepresent himself to the jury, with the government forced to sit silently by, looking at a criminal record which, if made known, would give the jury a more comprehensive view of the trustworthiness of the defendant as a witness.

Cook, 608 F.2d at 1187.

We conclude that the district court properly balanced all five Cook factors and did not abuse its discretion in permitting the government to impeach Hicks with evidence of his prior drug and residential robbery convictions. . . .

For the foregoing reasons, the convictions and sentences of all defendants are affirmed.

 


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