U.S. v. Begay, 97-2127

• Decision Date: 27 May 1998
• Docket Number: No. 97-2127,97-2127
• Parties: 49 Fed. R. Evid. Serv. 682, 98 CJ C.A.R. 2594 UNITED STATES of America, Plaintiff-Appellee, v. Stanley BEGAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1336

144 F.3d 1336

49 Fed. R. Evid. Serv. 682, 98 CJ C.A.R. 2594

UNITED STATES of America, Plaintiff-Appellee, v. Stanley BEGAY, Defendant-Appellant.

No. 97-2127.

United States Court of Appeals, Tenth Circuit.

May 27, 1998.

Robert R. Cooper, Albuquerque, New Mexico, for Defendant-Appellant.

Robert J. Gorence, Assistant United States Attorney (John J. Kelly, United States Attorney, and Samuel L. Winder, Assistant United States Attorney, on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

Before BALDOCK, BARRETT, and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

Defendant Stanley Begay appeals after a jury convicted him on one count of robbery on an Indian reservation in violation of 18 U.S.C. §§ 1153 and 2111, and acquitted him on the related count of assault with an automobile. ¹ He argues that (1) the district court abused its discretion by preventing him from impeaching government witnesses regarding their prior convictions, and (2) his due process rights were violated by the prosecutor's misconduct while cross-examining a defense witness.

I

The critical facts supporting the indictment involved defendant, Frank Begay (F.B.) (unrelated), and Rickie Hannah. Hannah loaned a car to F.B. one evening while Hannah, who was ill, rested at the home of F.B.'s mother. F.B. returned the following day with the vehicle and George Etcitty, whom Hannah had not met previously. Hannah agreed to give Etcitty a ride home to Nageezi, New Mexico. En route to Nageezi, Hannah, Etcitty and F.B. stopped at a curio shop where they encountered defendant, whom F.B. and Hannah had never before met. The four left and ultimately picked up Etcitty's mother and stopped at a grocery store. F.B. then drove on to Etcitty's mother's house with her, Etcitty, and defendant also in the car.

Upon arrival Hannah declined an invitation into the Etcitty home because he felt ill. F.B. also remained in the car in the driver's seat. The government's evidence showed that while F.B. remained in the driver's seat, someone grabbed him, threw him down, pulled his forehead back, and held a knife to his throat. Hannah had fallen asleep, but awoke when defendant struck his face. Defendant then kicked Hannah, struck him in the face several times, pointed a gun at him, and ordered him from the vehicle. Hannah ran away in fear that defendant would shoot him. F.B. had already exited from the driver's seat and left the immediate area. Hannah testified that defendant then approached him and ordered him back into the car. Etcitty was now in the front passenger seat, so Hannah sat in the back seat. After a short drive, the three encountered F.B. F.B. and Etcitty testified at trial that defendant accelerated the car, hitting F.B., then drove on to a trading post. While Hannah used the restroom, defendant and Etcitty left in Hannah's car.

The following day, while another friend was driving Hannah home, they noticed Hannah's car parked at the trading post. Hannah located the keys and recognized the gun found in the car as the one defendant had pointed at him the previous day.

II

A

Defendant first challenges the district court rulings disallowing cross-examination as to Hannah's prior conviction for marijuana possession and F.B.'s prior rape and burglary convictions. We review decisions to admit or exclude evidence of prior convictions for abuse of discretion, United States v. Linn, 31 F.3d 987, 991 (10th Cir.1994), and afford substantial deference when the district court has engaged in the balancing required by Federal Rule of Evidence 609. United States v. Halbert, 668 F.2d 489, 495 (10th Cir.1991).

Federal Rule of Evidence 609(a)(1) and (2) governs the use of prior conviction evidence for impeachment purposes. It reads:

(a) General rule. For the purpose of attacking the credibility of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

Rule 403 balancing applies unless the prior crime involves dishonesty or false statements; the time limits in Rule 609(b) may also operate to exclude the prior conviction evidence.

Hannah received probation and a deferred sentence for possession of marijuana, a felony. The defense made no showing of the value of establishing this conviction. The district court found that a conviction for marijuana possession did not relate to dishonesty and had limited probative value as to Hannah's credibility; it concluded the evidence lacked probative value for purposes of cross-examination and would possibly prejudice the jury if admitted. A conviction for drug possession is not necessarily relevant to credibility and is potentially prejudicial in arousing sentiment against a witness. Wilson v. Union Pacific R.R. Co., 56 F.3d 1226, 1231 (10th Cir.1995) (civil case; plaintiff as witness). We thus reject defendant's challenge to the ruling on Hannah's conviction.

F.B.'s rape and burglary convictions that the district court also excluded, were nearly ten years old at the time of trial. Federal Rule of Evidence 609(b) generally directs that convictions more than ten years old are not admissible. In excluding this evidence, the district court considered its relevance for impeachment purposes, relying in part on "Teamsters " [sic]. ² The district court concluded that the prior convictions lacked probative value and were not necessarily relevant to F.B.'s credibility.

We have held that a prior robbery conviction is not automatically admissible under Rule 609(a)(2). In Seamster, this court held that a defendant's prior burglary convictions offered as impeaching evidence were not automatically admissible, but that the district court did not abuse its discretion by allowing cross-examination of the defendant regarding those crimes. See United States v. Seamster, 568 F.2d 188, 191 (10th Cir.1978); see also United States v. Mejia-Alarcon, 995 F.2d 982, 989 (10th Cir.1993) (same); Christmas v. Sanders, 759 F.2d 1284, 1292 (7th Cir.1985) (sex crimes not generally relevant to veracity).

Defendant argues that United States v. Jefferson, 925 F.2d 1242, 1256 (10th Cir.1991), treats a prior robbery conviction as relevant to credibility. Although Jefferson upheld the admission of such evidence against a testifying defendant by a district court which believed it relevant to credibility, it does not require us to conclude under the facts before us that failure to allow use of the prior convictions of F.B. and Hannah for impeachment was an abuse of the district court's discretion.

Further, F.B.'s testimony did not relate to the robbery count on which defendant was convicted, but only to the assault count for which defendant was acquitted. Allowing F.B. to be impeached with this evidence would not have affected defendant's robbery conviction. Thus, even if the court's ruling was error it was harmless in the circumstances of this case. See Mejia-Alarcon, 995 F.2d at 990-91 (applying harmless error analysis).

B

Defendant raises two related arguments regarding the district court's Rule 609 rulings. He asserts that the district court abused its discretion in allowing Hannah to vouch for F.B.'s credibility while refusing to allow the prior conviction impeachment evidence, and that the Rule 609 evidentiary rulings deprived him of due process under the Fifth and Sixth Amendments.

Federal Rule of Evidence 608(a) allows opinion evidence regarding a witness' credibility after an attack on that witness' credibility. Part of defense counsel's crossexamination of Hannah was designed to undermine F.B.'s credibility. Defense counsel specifically inquired about Hannah loaning a car to F.B., who did not return the vehicle to Hannah when promised. On redirect the government clarified with Hannah that although F.B. lied about returning the vehicle, Hannah did not consider Frank to be a "liar." II R. 157-58. This type of testimony is of the nature contemplated by Rule 608 and did not amount to improper vouching by a witness of another witness' credibility. Further, F.B.'s credibility was of no consequence to the vehicle robbery conviction.

Defendant also argues that the district court's unfavorable Rule 609 decisions deprived him of due process, because he could not effectively impeach the credibility of F.B. and Hannah. We review limitations on cross-examination of witnesses for abuse of...