U.S. v. Bensimon
| Decision Date | 13 April 1999 |
| Docket Number | No. 98-50080,98-50080 |
| Citation | 172 F.3d 1121 |
| Parties | 99 Cal. Daily Op. Serv. 2686, 1999 Daily Journal D.A.R. 3491 UNITED STATES of America, Plaintiff-Appellee, v. David BENSIMON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ephraim Margolin, San Francisco, California, for the defendant-appellant.
Thomas P. Sleisenger, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.
Appeal from the United States District Court for the Central District of California; James M. Ideman, District Judge, Presiding. D.C. No. CR-96-00985-JMI.
Before: PREGERSON, BOOCHEVER, and HAWKINS, Circuit Judges.
David Bensimon was convicted in federal district court of conspiracy in violation of 21 U.S.C. § 846, and possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a). On appeal, Bensimon argues that the district court erred by allowing the government to impeach him with evidence of his seventeen-year-old conviction for mail fraud. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and remand for a new trial.
On October 9, 1996, U.S. Customs inspectors examined a shipment of 1,500 cartons of glass blocks arriving in Florida from Venezuela, and found cocaine hidden in 51 of the cartons. The shipment was consigned to "Black Sea Enterprises, C/O Hussein Saleh," with Long Beach, California as the ultimate destination. Customs agents sent the shipment to Long Beach in anticipation of a controlled delivery. On October 10, in California, Rudolf Kogan began making arrangements for the shipment to clear customs. He visited two customs brokers near Los Angeles International Airport, and representing himself to be "Hussein Saleh," provided the brokers with a Social Security number and a business card belonging to Saleh. Kogan then signed over a power of attorney authorizing the broker to conduct business on Saleh's behalf. Kogan also hired a truck driver to transport the shipment to a warehouse in the San Fernando Valley once it arrived.
On October 19, the container arrived at the rail yard in Long Beach. The agents sprayed the boxes containing cocaine with an invisible powder that becomes fluorescent when exposed to infrared light. On October 22, Kogan and Bensimon met a truck driver at the rail yard. Kogan and Bensimon were both seen to go into the rail yard offices, and were told that the shipment had been cleared. After the truck picked up the shipment, Bensimon got in his pick-up truck and drove off. Kogan got in his car and led the truck carrying the shipment to a warehouse in Van Nuys. Bensimon arrived at the warehouse soon thereafter.
The next day, hired laborers unloaded the glass blocks. The windows of the warehouse had been covered with butcher block paper so that no one could see inside. After the laborers left, Bensimon and Kogan stayed in the warehouse for a The next day, the government executed search warrants for the warehouse and the two vehicles belonging to Kogan and Bensimon. The warehouse was empty except for a phone, a fax machine, and the glass block shipment. Some of the flaps to the cartons containing the cocaine had been opened the day before. Inside Bensimon's pick-up truck, agents found an illegally cloned cellular telephone which previously had been used to call Kogan and the customs broker. The agents also found a leather briefcase belonging to Bensimon containing numerous documents relating to Saleh and Black Sea Enterprises. The agents searched Bensimon's home the following day, and seized tax and bankruptcy records.
short while, then locked the warehouse and drove away. They drove only a short distance before being arrested. Bensimon and Kogan both had fluorescent powder on their hands. The agents took the keys to the warehouse from Bensimon, and conducted a protective sweep of the warehouse before locking it up for the night. There was testimony that the agents did not handle or touch the glass blocks.
Bensimon and Kogan were charged in a two-count indictment alleging conspiracy and possession of cocaine with intent to distribute. At trial, Bensimon testified that he did not know that cocaine was contained in the shipment, but thought he was merely helping his business associates import glass blocks. Bensimon was convicted on both counts in the indictment. Bensimon's co-defendant, Kogan, who did not testify, was acquitted on both counts. Bensimon filed this timely appeal.
Prior to trial, the government moved in limine under Federal Rule of Evidence 609(b) to admit as impeachment evidence Bensimon's seventeen-year-old conviction for mail fraud. The district court denied the motion because the prior conviction was just "too old and not sufficiently critical" to have much probative value. The court added that it was "not a great fan of prior felony convictions ... as bearing upon credibility, and this one doesn't seem to have a lot, logically, to do with credibility." The district court made the ruling without prejudice subject to Bensimon's testimony, but it warned the government "not to have too much hope" that it would be admitted. Later at the pretrial status conference, the district court again explained that it did not think the seventeen-year-old conviction was relevant because of its age, but again made the ruling subject to Bensimon's testimony. The court stated that it would admit the prior conviction if, for example, Bensimon testified he was a law-abiding citizen, and had been all of his life.
At trial, Bensimon testified that in 1996, he agreed to help two business associates, Amnon Mizrahi and Hussein Saleh, import glass blocks from Venezuela to the United States, but he had no knowledge of any cocaine. At the time, Bensimon was operating a successful seafood import business. Bensimon testified that on the day the shipment was delivered to the warehouse, he left the rail yard and met with Saleh, who gave him the keys to the warehouse and money to pay the laborers to unload the shipment. Saleh also asked Bensimon to pick up a "DHL" envelope sitting on the desk in the warehouse. 1
Bensimon spent much of his testimony denying that any incriminating documents were found in his briefcase. Instead, he testified that those documents were actually contained in the DHL envelope he had picked up for Saleh at Saleh's request. The only documents in his briefcase, he claimed, were related to his seafood importing business. This testimony was in direct conflict with that of customs agents who stated that they found incriminating documents in Bensimon's briefcase. Bensimon also made passing references to the fact that he observed religious holidays After Bensimon finished his direct testimony, the government renewed its request to impeach Bensimon with his prior mail fraud conviction, arguing that impeachment was necessary given the significant conflict between Bensimon's and the agents' testimonies. The district court denied the request, stating simply, "the mail fraud conviction, that is out." Midway through Bensimon's cross-examination, however, the district court reconsidered its ruling and admitted the mail fraud conviction under Rule 609(b). The court provided the following explanation:
had served in the Israeli army, and was married with two children.
I have refused all along to let the Government use this. I'm not a great devotee of prior felony convictions--and this one is quite old--and it would take an extreme situation for me to permit it, but I think this case presents that situation.
Here is a case where the defendant has constructed a picture of himself as a law-abiding citizen, a husband, father, religious Jew, Army veteran, successful businessman, all of which extends over many years. He's placed his testimony in direct [conflict] with the officer who says that he found the incriminating material in his briefcase. That turns out to be an important point. So his credibility is very much on the line.
And here's a man who can't remember or even approximate what his earnings were in recent years, even though some of the returns would indicate that his years were disastrous; and then he hedges even on the question of where he was last year. He can't remember if he went to Belgium last year.
I think this is a case where the interest of justice definitely calls for impeachment to be permitted.
I've read all the arguments on both sides. I've been going with the defense all along on this, but now I feel that the interests of justice require that this be an exception and that it be permitted. I'm going to permit it.
* * *
I find it difficult to imagine a stronger case for letting it in. I wouldn't let it in unless I thought it was a very strong case and that the probative value definitely exceeds any prejudicial effect.
Bensimon's counsel immediately objected, arguing that Bensimon would not have testified had he known the district court would admit his prior conviction. Counsel moved for a mistrial, but the district court denied the motion, stating "by putting your client on the stand, you ran that risk."
Bensimon argues on appeal that the district court erred under Rule 609(b) because it improperly balanced probative value and prejudicial effect. We review for abuse of discretion a district court's decision to admit evidence of a prior conviction under Rule 609(b). See United States v. Vgeri, 51 F.3d 876, 880 (9th Cir.1995). A district court's interpretation of the Federal Rules of Evidence is reviewed de novo. See id.
Rule 609(b) provides that a conviction more than ten years old is not admissible as impeachment evidence "unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect."...
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