Ohler v. U.S.

Decision Date22 May 2000
Docket Number989828
Citation120 S.Ct. 1851,529 U.S. 753,146 L.Ed.2d 826
PartiesSyllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES OHLER v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT_9828
CourtU.S. Supreme Court
Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.

SUPREME COURT OF THE UNITED STATES

OHLER

v.

UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 98_9828.

Argued March 20, 2000

Decided May 22, 2000

Petitioner Ohler was tried on drug charges. The Federal District Court granted the Government's motion in limine to admit her prior felony drug conviction as impeachment evidence under Federal Rule of Evidence 609(a)(1). Ohler testified at trial and admitted the prior conviction on direct examination. The jury convicted her. In affirming, the Ninth Circuit rejected her challenge to the District Court's in limine ruling, holding that she waived her objection by introducing the evidence during her direct examination.

Held: A defendant who preemptively introduces evidence of a prior conviction on direct examination may not challenge the admission of such evidence on appeal. Ohler attempts to avoid the well-established commonsense principle that a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted by invoking Federal Rules of Evidence 103 and 609. However, neither Rule addresses the question at issue here. She also argues that applying such a waiver rule in this situation would compel a defendant to forgo the tactical advantage of preemptively introducing the conviction in order to appeal the in limine ruling. But both the Government and the defendant in a criminal trial must make choices as the trial progresses. Ohler's submission would deny to the Government its usual right to choose, after she testifies, whether or not to use her prior conviction against her. She seeks to short-circuit that decisional process by offering the conviction herself (and thereby removing the sting) and still preserve its admission as a claim of error on appeal. But here she runs into the position taken by the Court in Luce v. United States, 469 U.S. 38, 41, that any possible harm flowing from a district court's in limine ruling permitting impeachment by a prior conviction is wholly speculative. Only when the Government exercises its option to elicit the testimony is an appellate court confronted with a case where, under normal trial rules, the defendant can claim the denial of a substantial right if in fact the district court's in limine ruling proved to be erroneous. Finally, applying this rule to Ohler's situation does not unconstitutionally burden her right to testify, because the rule does not prevent her from taking the stand and presenting any admissible testimony she chooses. Pp. 2_7.

169 F.3d 1200, affirmed.

Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined.

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 98_9828

MARIA SUZUKI OHLER, PETITIONER

v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[May 22, 2000]

Chief Justice Rehnquist delivered the opinion of the Court.

Petitioner, Maria Ohler, was arrested and charged with importation of marijuana and possession of marijuana with the intent to distribute. The District Court granted the Government's motion in limine seeking to admit evidence of her prior felony conviction as impeachment evidence under Federal Rule of Evidence 609(a)(1). Ohler testified at trial and admitted on direct examination that she had been convicted of possession of methamphetamine in 1993. The jury convicted her of both counts, and the Court of Appeals for the Ninth Circuit affirmed. We agree with the Court of Appeals that Ohler may not challenge the in limine ruling of the District Court on appeal.

Maria Ohler drove a van from Mexico to California in July 1997. As she passed through the San Ysidro Port of Entry, a customs inspector noticed that someone had tampered with one of the van's interior panels. Inspectors searched the van and discovered approximately 81 pounds of marijuana. Ohler was arrested and charged with importation of marijuana and possession of marijuana with the intent to distribute. Before trial, the Government filed motions in limine seeking to admit Ohler's prior felony conviction as character evidence under Federal Rule of Evidence 404(b) and as impeachment evidence under Rule 609(a)(1). The District Court denied the motion to admit the conviction as character evidence, but reserved ruling on whether the conviction could be used for impeachment purposes. On the first day of trial, the District Court ruled that if Ohler testified, evidence of her prior conviction would be admissible under Rule 609(a)(1). App. 97_98. She testified in her own defense, denying any knowledge of the marijuana. She also admitted on direct examination that she had been convicted of possession of methamphetamine in 1993. The jury found Ohler guilty of both counts, and she was sentenced to 30 months in prison and 3 years' supervised release. Id., at 140_141.

On appeal, Ohler challenged the District Court's in limine ruling allowing the Government to use her prior conviction for impeachment purposes. The Court of Appeals for the Ninth Circuit affirmed, holding that Ohler waived her objection by introducing evidence of the conviction during her direct examination. 169 F.3d 1200 (1999). We granted certiorari to resolve a conflict among the Circuits regarding whether appellate review of an in limine ruling is available in this situation. 528 U.S. ___ (1999). See United States v. Fisher, 106 F.3d 622 (CA5 1997) (allowing review); United States v. Smiley, 997 F.2d 475 (CA8 1993) (holding objection waived). We affirm.

Generally, a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted. See 1 J. Weinstein & M. Berger, Weinstein's Federal Evidence §103.14, 103-30 (2d ed. 2000). Cf. 1 J. Strong, McCormick on Evidence §55, p. 246 (5th ed. 1999) ("If a party who has objected to evidence of a certain fact himself produces evidence from his own witness of the same fact, he has waived his objection."). Ohler seeks to avoid the consequences of this well-established commonsense principle by invoking Rules 103 and 609 of the Federal Rules of Evidence. But neither of these Rules addresses the question at issue here. Rule 103 sets forth the unremarkable propositions that a party must make a timely objection to a ruling admitting evidence and that a party cannot challenge an evidentiary ruling unless it affects a substantial right.1 The Rule does not purport to determine when a party waives a prior objection, and it is silent with respect to the effect of introducing evidence on direct examination, and later assigning its admission as error on appeal.

Rule 609(a) is equally unavailing for Ohler; it merely identifies the situations in which a witness' prior conviction may be admitted for impeachment purposes.2 The Rule originally provided that admissible prior conviction evidence could be elicited from the defendant or established by public record during cross-examination, but it was amended in 1990 to clarify that the evidence could also be introduced on direct examination. According to Ohler, it follows from this amendment that a party does not waive her objection to the in limine ruling by introducing the evidence herself. However, like Rule 103, Rule 609(a) simply does not address this issue. There is no question that the Rule authorizes the eliciting of a prior conviction on direct examination, but it does no more than that.

Next, Ohler argues that it would be unfair to apply such a waiver rule in this situation because it compels a defendant to forgo the tactical advantage of preemptively introducing the conviction in order to appeal the in limine ruling. She argues that if a defendant is forced to wait for evidence of the conviction to be introduced on cross-examination, the jury will believe that the defendant is less credible because she was trying to conceal the conviction. The Government disputes that the defendant is unduly disadvantaged by waiting for the prosecution to introduce the conviction on cross-examination. First, the Government argues that it is debatable whether jurors actually perceive a defendant to be more credible if she introduces a conviction herself. Brief for United States 28. Second, even if jurors do consider the defendant more credible, the Government suggests that it is an unwarranted advantage because the jury does not realize that the defendant disclosed the conviction only after failing to persuade the court to exclude it. Ibid.

Whatever the merits of these contentions, they tend to obscure the fact that both the Government and the defendant in a criminal trial must make choices as the trial progresses. For example, the defendant must decide whether or not to take the stand in her own behalf. If she has an innocent or mitigating explanation for evidence that might otherwise incriminate, acquittal may be more likely if she takes the stand. Here, for example, petitioner testified that she had no knowledge of the marijuana discovered in the van, that the van had been taken to Mexico without her...

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