United States v. Estes
994 F.2d 147 (5th Cir. 1993)

Before Higginbotham, Smith, and DeMoss, Circuit Judges.

Per Curiam:


Ralph Edward Estes was convicted of being a felon in possession of a firearm and was sentenced to 180 months’ imprisonment and three years’ supervised release. The Government’s chief witness was Deputy Douglas Yeager, who testified that he stopped Estes for a traffic violation and discovered the firearm in his possession. Prior to trial, the Government filed a motion in limine to exclude evidence of Deputy Yeager’s prior state misdemeanor conviction for impersonating a public official. The conviction was approximately 12 years old. The Government sought to prevent Estes from making any reference to this conviction to impeach Yeager. Estes argued that Federal Rule of Evidence 609(b) gave the district court the discretion to admit the evidence. He argued that Yeager’s conviction was extremely probative of his credibility and that its admission was necessary. . . .


Estes argues that the district court erred in refusing to admit evidence of Yeager’s prior conviction. He contends that the district court failed to perform the balancing test required by Fed. R. Evid. 609(b) and relied only on the age of the conviction as a basis for excluding the evidence. He contends that this conviction was probative of Yeager’s credibility and was critical evidence because the evidence against him came exclusively from Yeager. He argues that the Government has failed to show any danger of prejudice from admission of this evidence. . . .

Fed. R. Evid. 609(a) allows a witness’s credibility to be impeached by evidence of prior convictions punishable by death or imprisonment in excess of one year, provided the court determines that the probative value of the evidence outweighs its prejudicial effect. Fed. R. Evid. 609(b) provides that evidence of such convictions is not admissible if the conviction is more than ten years old, unless the court determines that the probative value of the conviction substantially outweighs its prejudicial effect.

The district court has broad discretion in its application of this rule, and when made, the weighing of probative value and prejudicial effect must be made on the record. This Court has stated that this requirement is mandatory rather than discretionary.

We read Rule 609(b) to say that the probative value of a conviction over ten years old is outweighed by its prejudicial effect. The general rule is inadmissibility. It is only when the court admits evidence of a conviction over ten years old that the court must engage in a balancing test on the record. . . .

Finally, we have serious doubt that the conviction was probably admissible anyway because it was not the type of conviction allowed to be used for impeachment under Fed. R. Evid. 609. The Government stated in its motion in limine that the conviction was a state misdemeanor for impersonating a public official. Estes has never disputed this assertion. Rule 609(a) provides that the conviction must be for a crime punishable by death or imprisonment in excess of one year. The crime of impersonating a public servant under Texas law is a Class A misdemeanor punishable by no more than one year.

For the foregoing reasons, we affirm the district court’s ruling on the motion in limine.


991 F.2d 374 (7th Cir. 1993)

Cummings, Circuit Judge.

On August 15, 1991, a suitcase arrived at John F. Kennedy Airport in New York from Lagos, Nigeria, addressed to one Doreen Bennett at the Children’s Home and Aid Society in Joliet, Illinois. According to trial testimony, a letter and waybill attached to the outside of the suitcase indicated that it contained traditional Nigerian clothing sent to Bennett as thanks for a gift of bibles to the Elder Okezie, Christ Devian Church in Aba, Nigeria. A customs inspector at the airport opened the suitcase and found that it was indeed stuffed with clothes. However, the inspector smelled glue. He stripped away the inner shell of the suitcase to discover a plastic bag containing 431 grams of 91 percent pure heroin. It was stipulated at trial that this extraordinarily pure heroin, at $22,000 per ounce, was worth between $352,000 and $396,000. A day later another special agent flew to New York, picked up the suitcase and brought it to Chicago. He placed a radio transmitter inside the suitcase and exchanged the seized drugs with a similar package containing a less potent mixture of heroin. Four days later, posing as a delivery man, the agent dropped off the package to its addressee, Doreen Bennett, at the Children’s Home. The radio transmitter went off ten minutes later, signaling that the suitcase had been opened, and agents entered the Children’s Home where they discovered Bennett kneeling down in front of the open valise and beginning to peel back the lining.

Claiming to be ignorant of the illicit contents, Bennett agreed to cooperate with agents by delivering the suitcase to a friend: defendant Ihuoma R. Amaechi. She said it was Amaechi who had asked her to receive the package in the first place. According to Bennett, a case manager at the Children’s Home, Amaechi asked her on August 1, 1989 for her business address so that he could send her flowers—which she never received. On August 13 he called her, said he would be out of town, and asked if she would accept a package of clothing from his church. She agreed reluctantly but when the suitcase arrived she was disconcerted that it was addressed to her and that it was a valise rather than a package. Bennett was actually on the phone with Amaechi when the suitcase arrived. He was so anxious to get hold of it that he offered her $50 if she would cancel a hair appointment she had scheduled that evening—apparently Amaechi had not gone out of town—and he explained that he would lose a sale if he did not get the clothing quickly to the buyer. Bennett arranged to meet Amaechi that night at a bar appropriately called LaMirage. Followed by the federal agents with whom Bennett had agreed to cooperate, she met Amaechi at the bar; Amaechi of course asked for the suitcase and Bennett told him it was in her automobile. After a drink she drove Amaechi to his car, and after transferring the suitcase to the trunk of his car, defendant was arrested.

Amaechi was indicted for attempting to possess with intent to distribute 523.2 grams of heroin. . . .

Ihuoma Amaechi was convicted after a jury trial and sentenced to 112 months in prison plus a life term of supervised release under 21 U.S.C. 841(a). . . .

Defendant also suggests that the court erred in excluding evidence of Doreen Bennett’s conviction for shoplifting. Bennet pleaded guilty on April 19, 1989 in Cook County Circuit Court to stealing less than $150, a misdemeanor, and was sentenced to a three-month term of supervision. Federal Rule of Evidence 609 allows evidence of a witness’s prior conviction for impeachment if, among other things, the punishment could have exceeded one year (Bennett’s did not), or if the crime involves dishonesty or false statement no matter how long the sentence. It is difficult to see how this evidence prejudiced Amaechi since his defense was that he was framed by his half-brother; he did not dispute that he arranged with Bennett for her to receive a package of clothing. Thus Bennett’s credibility as a witness did not bolster or undermine Amaechi’s story so much as it helped the authorities evaluate Bennett’s claim to be ignorant of the contents of the suitcase. In any event, Illinois law clearly contemplates that a sentence of supervision does not constitute a conviction for evidentiary purposes. Since Bennett’s shoplifting did not result in a conviction, it may not be admitted to attack her credibility under Rule 609(a)(2).

The government also urges us to adopt the reasoning of nine circuits that shoplifting is not a crime of dishonesty unless committed in a fraudulent or deceitful manner. Shoplifting, of course, does involve dishonesty of a certain kind; the question is whether it involves the kind contemplated by Congress in drafting the Rules of Evidence—i.e., whether it indicates that a person may be more likely to commit perjury. The calculus underlying this realm of evidence law—that people who lie in other contexts are more likely to perjure themselves than people who steal—is empirically questionable on a number of levels. Some people who falsify forms, for example, would stop short of committing the crime of perjury, while many thieves may be incorrigible liars. Yet the drafters of the Rules of Evidence explicitly intended that Rule 609 be limited to crimes involving "some element of misrepresentation or other indication of a propensity to lie and excluding those crimes which, bad though they are, do not carry with them a tinge of falsification." Having made the initial questionable assumption that some people are more given to perjury than others based on past conduct, we agree with nine other circuits that to include shoplifting as a crime of dishonesty would swallow the rule and allow any past crime to be admitted for impeachment purposes. Therefore, we hold that petty shoplifting does not in and of itself qualify as a crime of dishonesty under Rule 609. The district judge correctly prohibited Amaechi’s counsel from impeaching Bennett with her shoplifting conviction. . . .

The judgment is affirmed. . .


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