Burg v. United States

• Citation: 406 F.2d 235
• Decision Date: 16 January 1969
• Docket Number: No. 22619.,22619.
• Parties: Keith Joseph BURG, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

406 F.2d 235 (1969)

Keith Joseph BURG, Appellant, v. UNITED STATES of America, Appellee.

No. 22619.

United States Court of Appeals Ninth Circuit.

January 16, 1969.

J. Rayner Kjeldsen (argued), Reno, Nev., for appellant.

Julien Sourwine (argued), Asst. U. S. Atty., Joseph L. Ward, U. S. Atty., Reno, Nev., for appellee.

Before MADDEN,^* Judge of the United States Court Claims; HAMLEY and ELY, Circuit Judges.

MADDEN, Judge:

The appellant Burg, hereinafter called the defendant, was convicted in a jury trial in the District Court, of bank robbery, a violation of Title 18, United States Code, § 2113(a). He has appealed. There is no problem concerning the jurisdiction of the District Court or of this court.

The appellant states, as his grounds for appeal:

A. It was prejudicial error for the trial court to refuse defendant\'s motion that the Government not be allowed to ask any questions with regard to whether the defendant had prior felony convictions, upon the representation that the defendant would state if he were asked said questions that he had prior felony convictions.

B. Even though no objection was raised in the trial court, the instant case should be reversed because of improper argument by the United States Attorney.

The question raised by the defendant under paragraph A above concerns the admissibility against a defendant who is a witness in his own defense, of evidence that he has had one or more prior convictions of felonies. Rule 26 of the Federal Rules of Criminal Procedure provides, so far as here pertinent:

The admissibility of evidence * * shall be governed * * * by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.

The weight of authority in the federal courts is that evidence of conviction of a felony is admissible to impeach the credibility of a witness. In the last few years that consistent line of precedents has been interrupted by decisions of the United States Court of Appeals for the District of Columbia. In Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763, 768-769 (1965), that court discussed at length the problem which had been a subject of discussion by legal writers and in State legislatures, the problem of prejudice resulting from such evidence, particularly when the witness is the defendant in a criminal case. The court in Luck stresses the dilemma which confronts a defendant who desires to take the stand in his defense, but who would if his prior conviction could be used to impeach his credibility, assume the risk that the jury might be affected, to his prejudice, by the knowledge of his prior crime. In Luck, the court held that the trial judge should, when the question is raised by the defendant whether, if he takes the witness stand, his prior conviction may be put in evidence to impeach his credibility, weigh the value of the evidence of prior conviction as an assistance to the jury in deciding whether the defendant's testimony should be believed, against the handicap to the jury of not hearing the defendant's testimony, because he will not take the stand and thereby expose himself to the prejudice in the minds of the jury resulting from their learning that he is a prior-convicted criminal. The Luck case does not hold that in every case the trial court should rule that the defendant could take the stand and his prior conviction could not be offered against him. It holds that the trial judge should consider the circumstances of the specific case before the court. The court which decided the Luck case, said, in Brown v. United States, 125 U.S.App.D.C. 220, 370 F.2d 242 (1966):

* * * We were led in Luck to hold that, while prior convictions might have some bearing on credibility, the trial court is not bound by 14 D.C.Code § 305¹ to permit impeachment in every case. Rather we called upon the trial court to exercise discretion, noting that "(t)here may well be cases where the trial judge might think that the cause of truth would be helped more by letting the jury hear the defendant\'s story than by the defendant\'s foregoing that opportunity because of the fear of prejudice founded upon prior conviction. There may well be other cases where the trial judge believes the prejudicial effect of impeachment far outweighs the probative relevance of the prior conviction to the issue of credibility." * * * We went on to mention some of the considerations that might be relevant in exercising that discretion, such as "the nature of the prior crimes, the length of the criminal record, the age and circumstances of the defendant, and, above all, the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant\'s story than to know of a prior conviction."

* * * * * *

This is not to say that a prior conviction has no relevance to credibility. It is to say that the trial judge, in weighing the prejudice that might result from the admission against interest in having the defendant testify, should focus on just how relevant to credibility a particular conviction may be. While one who has recently been convicted of perjury might well be suspected of lying again under oath, the fact that a defendant accused of assault has already been convicted of assault has no such bearing on credibility.

There is, of course, much food for thought in the opinions of the Court of Appeals for the District of Columbia in the Luck and Brown cases, supra. The defendant urges that we apply the doctrine of those cases to his instant case. For us to do what the defendant urges would be a sharp departure from the regular course of decisions in the federal courts. The defendant does not cite any federal case, other than the recent cases in the District of Columbia, holding that prior conviction of a felony is not, as a matter of course, admissible in evidence to impeach the credibility of a witness. Indeed, the Court of Appeals for the District of Columbia, in a decision rendered more recently than Luck and Brown decisions seems to have receded somewhat from the advanced position taken in those earlier decisions. In Gordon v. United States, 383 F.2d 936, 939, 127 U.S. App.D.C. 343 (1967) the Court said:

"The test of Luck, however, is that to bar prior convictions as impeachment the court must find that the prejudice must `far outweigh\' the probative relevance to credibility * *."

This "far outweigh" language in Gordon is a more emphatic statement of what was recognized in Luck, i. e., that prior conviction is in fact relevant and probative on the question of credibility. It would seem, then, that even in the District of Columbia, the defendant would have a heavy burden indeed when, as in the instant case, his prior conviction was for theft, to persuade the trial court that it was "far" more important, in the fair administration of justice, to keep the jury in the dark as to whether the defendant was a credible witness than to require the defendant to elect at his risk whether or not to take the witness stand in his defense.

The Luck doctrine places on the trial judge a delicate and difficult responsibility for weighing things which are, in fact, not susceptible of being weighed. The Luck rule may thus tend to put the...