United States v. Valencia
616 F.3d 616 (8th Cir. 1995)
 

BOGUE, Senior District Judge.

Otoniel Maldonado Valencia (appellant) was charged by superseding indictment with one count of conspiracy to possess with intent to distribute and to distribute cocaine HCl, three counts of distribution of cocaine HCl, and one count of money laundering. Witnesses cooperating with the government gave testimony to the effect that appellant was the California connection for various North Dakota drug dealers. A jury returned guilty verdicts on all counts and appellant was subsequently sentenced by the district court n1 to 240 months imprisonment. For reversal he asserts error in the district court's admission of a prior conviction under Fed. R. Evid. 609, prosecutorial misconduct, n2 and errors in calculating his sentence. Additional facts will be presented where indicated. For the reasons stated below, we affirm.

I. CONVICTION

Appellant first contends the district court erred when it admitted, for impeachment purposes, a prior conviction of the appellant for unlawful possession for sale and purchase for sale of a controlled substance. Previously, in its case in chief, the government had offered the prior conviction pursuant to Fed. R. Evid. 404(b). The district court denied the use of the previous conviction during the government's case in chief, finding that the balancing required under Fed. R. Evid. 403 militated against admission. Anticipating that the issue would likely arise later in the proceedings, the district court noted that

I'm going to exclude this evidence in the government's case in chief as it is observed under 404(b) and my reasoning again is under 403 and I find within my judgment and my discretion that I believe this evidence, though it may be relevant, is highly prejudicial and this unfair prejudice substantially outweighs any probative value of the evidence as it is observed. Now as I've indicated this ruling applies to the offer of the evidence under 404(b). My ruling under 609 at least as the facts of this case presently stand would be different ... .

Later in the trial the appellant testified in his own defense. On direct examination he admitted that he had a prior conviction for the possession of a controlled substance. On cross examination, the government offered a certified copy of the appellant's prior conviction. The government believed the appellant attempted to "explain away or minimize his guilt on the prior conviction" on direct examination. Over the appellant's objection, n4 the copy of the prior conviction was admitted under Fed. R. Evid. 609 for impeachment purposes.

Whether evidence of a prior conviction should be admitted is left to the discretion of the trail court. United States v. Swanson, 9 F.3d 1354, 1356 (8th Cir. 1993) (citing United States v. Reeves, 730 F.2d 1189, 1196 (8th Cir. 1984)). The standard of review on appeal is an abuse of discretion standard. Swanson, 9 F.3d at 1356.

The admission of prior bad acts evidence under Rule 404(b) is restricted by Rule 403 which states that otherwise relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. The appellant contends that Rule 609(a)'s internalized balancing test is stricter in terms of admissibility in that a prior conviction is not admissible against the accused for impeachment purposes unless the probative value of the evidence outweighs its prejudicial effect. Appellant's argument is that after finding that the prejudice of the prior conviction substantially outweighed the probative value under 404(b), the district court abused its discretion in admitting the same evidence under Rule 609, where it would be excluded if the prejudice merely outweighed its probative effect. We disagree.

First, it should be noted that we are not confronted with the district court's rulings in combination. No party has appealed the district court's Rule 404(b) decision excluding the prior conviction during the government's case in chief. Each ruling must be treated independently, divorced from prior rulings. We are faced solely with the ruling regarding whether the district court erred in admitting appellant's prior conviction for impeachment purposes under Rule 609. The appellant has offered no authority, and we have discovered none, which indicates that a ruling under 404(b) governs a decision or forecloses analysis in a later-presented Rule 609 question.

This lack of support for appellant's position is not surprising in that the respective rules operate in two completely different situations. In a criminal setting, evidence offered under Rule 404(b) is substantive evidence against the accused, i.e., it is part of the government's case offered to prove his guilt beyond a reasonable doubt. Rule 609 evidence on the other hand has to do with the accused's ability to tell the truth when testifying on his or her own behalf. While both rules speak of "probative value" and "prejudice," it is critical to note that evidence offered under the respective rules is probative as to different matters. The probative character of evidence under Rule 609 has to do with credibility of a witness, while 404(b) "probativeness" essentially goes to the question of whether or not the accused committed the crime charged. Any similarity or overlap in the standards of admissibility under the respective rules is irrelevant because the rules apply to completely distinct situations.

Having found the district court's earlier ruling under Rule 404(b) irrelevant in terms of the subsequent ruling under Rule 609, we turn to the specific ruling appealed. When he testified on direct examination, the appellant admitted that he had a prior conviction for possession of cocaine, but attempted to minimize his guilt regarding the prior conviction. n6 The government thereafter properly cross-examined the appellant in an effort to clarify the facts of the prior conviction and impeach his direct testimony. This cross-examination included the offer and receipt into evidence of a certified copy of the appellant's prior conviction. (fn. 6) The appellant in effect opened the door for the government's crossexamination by attempting to explain away or minimize his guilt. Swanson, 9 F.3d at 1357 (citing United States v. Amahia, 825 F.2d 177, 180 (8th Cir. 1987)). Viewing the entire record before us, we cannot say that the prior conviction had no bearing on the case or that the district court abused its discretion in admitting the same. United States v. Sykes, 977 F.2d 1242, 1246 (8th Cir. 1992).
...

Accordingly, we affirm the appellant's conviction and sentence.


n. 6 - Appellant testified to the effect that he was arrested and pled guilty to the possession charge, but the cocaine actually belonged to someone else.



 


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