713 F.2d 1236 (6th Cir. 1983), 82-5326, United States v. Luce

Docket Nº:82-5326, 82-5338 and 82-5377.
Citation:713 F.2d 1236
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Edward LUCE, Robert Kolofer, and James Luigs, Defendants-Appellants.
Case Date:August 09, 1983
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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713 F.2d 1236 (6th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,

v.

Edward LUCE, Robert Kolofer, and James Luigs, Defendants-Appellants.

Nos. 82-5326, 82-5338 and 82-5377.

No. 82-5377 Submitted on Briefs

United States Court of Appeals, Sixth Circuit

August 9, 1983

May 14, 1983.

Argued May 14, 1983.

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James L. Marcus (argued), Williams & Marcus, Chicago, Ill., for defendant-appellant in No. 82-5326.

Frank C. Holloman (argued), Memphis, Tenn., for defendant-appellant in No. 82-5338.

James O. Marty, Memphis, Tenn., for defendant-appellant in No. 82-5377.

W. Hickman Ewing, Jr., U.S. Atty., Timothy R. DiScenza, Asst. U.S. Atty., Memphis, Tenn., for plaintiff-appellee in all cases.

Arthur Kahn, Asst. U.S. Atty. (argued), Memphis, Tenn., for plaintiff-appellee in Nos. 82-5326 and 82-5338.

Before KENNEDY, Circuit Judge, PECK, Senior Circuit Judge, and ALLEN, [*] District Judge.

CORNELIA G. KENNEDY, Circuit Judge.

Defendants Luce, Kolofer, and Luigs appeal from their jury convictions for possession of a controlled substance with intent to distribute (21 U.S.C. § 841(a)(1)). Luce and Luigs also appeal their convictions for conspiracy to possess a controlled substance with intent to distribute (21 U.S.C. § 846). The defendants raise numerous evidentiary issues. For the reasons set forth below, we conclude that none of the District Court's rulings require reversal and affirm the convictions.

I.

Before trial, defendant Luce moved in limine to prohibit the government from using evidence of a 1974 felony conviction for possession of controlled substances to impeach Luce should he take the stand. Luce's counsel did not state that Luce would take the stand if the motion were granted, nor did he indicate the substance of Luce's testimony. The district judge ruled that, if Luce testified as to the merits of his case generally, the evidence of his prior conviction would be admissible to impeach him; but Luce could take the stand to testify solely concerning his flight from police officers without exposure to impeachment by his prior conviction. Luce did not testify at trial. He now urges that the district judge's ruling was prejudicial error and that his conviction must be reversed

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because he was precluded from taking the stand by fear of impeachment.

Luce claims that his prior conviction was inadmissible under Federal Rule of Evidence 609(a), which states:

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the Court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.

Luce's conviction would be admissible only if the District Court properly determined that its probative value outweighed its prejudicial effect. Such a determination is reviewable on an abuse of discretion standard. United States v. Williams, 587 F.2d 1 (6th Cir.1978). We need not decide whether the District Court abused its discretion here, however, as we hold that a preliminary ruling on admissibility is not reviewable on appeal when the defendant does not testify at trial and his prior convictions are not offered into evidence against him.

The only precedent in the Sixth Circuit on the question of under what circumstances a denial of motion in limine to exclude prior convictions is preserved for appeal is United States v. LeBlanc, 612 F.2d 1012 (6th Cir.1980), cert. denied, 449 U.S. 849, 101 S.Ct. 137, 66 L.Ed.2d 60 (1980). 1 In that bank robbery case, the District Court denied the defendant's motion in limine to exclude a prior robbery conviction. On appeal the government conceded that evidence of the conviction was admissible. This Court nonetheless affirmed the conviction, holding that the question had not been preserved for appeal. LeBlanc is persuasive precedent for the result we reach here but is not controlling since it rests upon multiple grounds, not all of which are present here. The Court's opinion noted five factors which supported its result: (1) defendant's counsel had not clearly argued the proper basis for concluding that the evidence was inadmissible; (2) counsel did not renew his objection to the ruling at the end of the government's case in chief; (3) counsel did not advise the court that the defendant would decline to testify because of the court's ruling; (4) counsel did not offer the substance of the defendant's testimony had he testified; and (5) it appeared that other tactical reasons may have influenced the defendant's decision not to testify.

If only the first two factors listed above were essential to the result in LeBlanc, Luce has properly preserved his question for appeal, as his counsel specifically argued the conviction's inadmissibility both before trial and at the close of the government's case. If more is required, the evidence's admissibility is not reviewable. Our opinion in LeBlanc did not indicate which factors were essential; therefore, we must now decide whether under the circumstances in this case the ruling on the motion in limine to exclude prior convictions will be reviewed.

A review of the law of the other circuits on this issue reveals that only two circuits have explicitly considered the question. The Ninth Circuit will review an in limine ruling on admissibility of prior convictions only if the defendant establishes on the record that he will take the stand and testify if his prior convictions are excluded and sufficiently outlines his testimony on the record so that the Rule 609 balancing can be performed. United States v. Cook, 608 F.2d 1175 (9th Cir.1979) (en banc ), cert. denied, 444 U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980). See also United States v. Portillo, 633 F.2d 1313 (9th Cir.1980), cert. denied, 450 U.S. 1043, 101 S.Ct. 1764, 68 L.Ed.2d 241 (1981); United States v. Hendershot, 614 F.2d 648 (9th Cir.1980). The Cook case

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overruled a line of Ninth Circuit cases which held that a preliminary ruling of admissibility could not be reviewed unless the defendant took the stand. United States v. Fulton, 549...

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