U.S. v. Crawford, 79-1373

• Decision Date: 29 November 1979
• Docket Number: No. 79-1373,79-1373
• Citation: 613 F.2d 1045,198 U.S.App.D.C. 312
• Parties: , 5 Fed. R. Evid. Serv. 189 UNITED STATES of America v. Faye Margaret CRAWFORD a/k/a Faye Margaret Powell, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1045

613 F.2d 1045

198 U.S.App.D.C. 312, 5 Fed. R. Evid. Serv. 189

UNITED STATES of America v. Faye Margaret CRAWFORD a/k/a Faye Margaret Powell, Appellant.

No. 79-1373.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 15, 1979.

Decided Nov. 29, 1979.

David O. Simon ^* with whom Michael E. Geltner and Victor H. Kramer, Washington, D. C. (appointed by this Court), were on the brief, for appellant.

Elliot R. Warren, Asst. U. S. Atty., Washington, D. C., with whom Carl S. Rauh, U. S. Atty., John A. Terry, Michael W. Farrell and James F. Rutherford, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before LEVENTHAL, ^** ROBB and WALD, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Petitioner's federal conviction for possession of narcotics with intent to distribute, now before us, was the subject of a previous opinion by this court. We remanded that conviction ¹ for further proceedings consistent with Rule 609(a) of the Federal Rules of Evidence governing the admissibility of previous convictions for impeachment purposes. In view of this court's prior opinion, we find the district court's actions on remand with regard to that rule insufficient. Accordingly, we return the case to the trial judge for further consideration of the admissibility of Crawford's prior shoplifting conviction under Rule 609(a).

I. INTRODUCTION

Petitioner, Faye M. Crawford, was before this court in United States v. Dorsey, 192 U.S.App.D.C. 313, 591 F.2d 922 (1978), challenging her narcotics and firearm convictions in part because the district court allowed the government to elicit an admission from her on cross-examination that she had earlier been convicted of shoplifting. Crawford's defense to the narcotics and firearms charges below was to deny any connection with the drugs involved and to explain as coincidental (1) her presence in the house where they were found and (2) her possession of the illegal firearm in question, when the police arrived with a search warrant. Thus, her credibility was clearly at issue in the trial.

This court remanded the case to the district judge for reconsideration in light of Rule 609(a) which allows a witness' credibility to be impeached on cross-examination by eliciting an admission of a prior conviction "only if" (1) the previous crime was punishable by death or imprisonment of more than a year and "the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant," or (2) the previous crime involved "dishonesty" or a false statement. Fed.R.Evid. 609(a).

Our prior opinion noted that the trial judge made no determination of the kind subsection (a)(1) requires. That opinion also noted that the Maryland shoplifting statute under which Crawford may have been convicted enumerates five different types of offenses, at least one of which does not qualify under subsection (a)(2) as a crime involving dishonesty. There was nothing in the record before us then to indicate which section of that statute was the basis for Crawford's prior conviction (or, indeed, whether that was the statute under which she was convicted ²). The case was remanded with instructions that the district court, Inter alia, reconsider the admissibility of Crawford's prior shoplifting conviction.

Without conducting any further hearing or inquiry of any kind on whether the probative value of admitting the shoplifting conviction into evidence outweighed its prejudicial effect on Crawford and without requiring the government to come forward with evidence as to the nature of the prior conviction or the circumstances surrounding it, the district court found that Crawford's admission was properly received into evidence.

While we do not necessarily require a full evidentiary hearing by the district court in Rule 609(a) cases, we feel constrained to find the district court proceedings on remand in this case inadequate.

II. PRIOR PROCEEDINGS

The factual background of Crawford's narcotics and firearms conviction is set forth in our prior opinion. 192 U.S.App.D.C. at 316-19, 591 F.2d at 925-28. For the purposes of this appeal, the following facts are relevant.

During a police search pursuant to a warrant of a house in Washington, D. C., Crawford was found with several other people in a bedroom where there was a substantial quantity of heroin packaged in plastic bags on top of a dresser and in a paper bag on the floor. The police also found a .25 caliber automatic pistol with obliterated serial numbers in Crawford's purse. She was subsequently charged with: one federal narcotics offense and two federal firearms offenses, along with one District of Columbia narcotics charge and two such firearms charges. The federal offenses were (1) possession of a narcotic drug with intent to distribute; ³ (2) receipt of a pistol in interstate commerce with the serial number removed; ⁴ and (3) unlawfully carrying a pistol during the commission of a felony. ⁵ The local charges were (1) possession of a narcotic drug; ⁶ (2) carrying a pistol without a license; ⁷ and (3) obliteration of identifying marks on a firearm. ⁸

At a pretrial hearing, Crawford's lawyer orally moved the trial judge to prevent the prosecution from questioning her as to previous larceny convictions if she took the stand to testify in her own defense. The following colloquy occurred:

Mr. Peek: (for Ms. Crawford) (My question) has to do with prior petty larceny convictions of my client as to whether or not they can be used.

My understanding is that it is (sic) the Court's discretion. I would think that it would be prejudicial to her, and I certainly do prefer they not be used since she is going to testify.

Mr. Fox: (for the government) (T)here are several petty larcenies . . . .

My request would be to use the petty larcenies because it seems to me they relate to credibility and honesty.

The Court: What were the outcomes with the petty larcenies? How long ago were they? What conditions were imposed and what were the sentences?

Mr. Fox: One was recently a shoplifting in Maryland. And the other is they are all within the last ten years. I have the information at my desk.

The Court: I would suggest that you use the most recent one.

Mr. Fox: All right.

Mr. Fox: And just for the record . . . Fay(e) Crawford's most recent shoplifting she is now serving time on in Maryland is 1977.

She also has a petty larceny in 1975 and attempted petty larceny in 1974.

Tr. 91-92.

When Crawford testified at trial, she denied any connection with the heroin. She admitted possession of the pistol when apprehended but asserted it was given to her after she entered the dwelling. Crawford explained her visit to the premises by asserting she had lived there at one time and had come there simply to use the telephone and to talk with friends. The only fact relating to the heroin charges she admitted was being in the bedroom where the heroin was found by the police.

On cross-examination, Crawford was asked by the government (pursuant to the district court's pretrial ruling): "Are you the same Faye Powell Crawford who was convicted of shoplifting in Maryland this year?" Crawford responded: "I am." Id. at 385-86. The jury subsequently found her guilty of all but the District of Columbia charge of obliterating the identifying marks on a firearm.

As this court noted in Dorsey, Crawford's credibility was a key issue in the trial:

To convict appellant on both heroin offenses, the jury first had to disbelieve her testimony that she had no connection with the heroin. It then had to rely on several facts that she disputed, since the only uncontradicted fact on which the government relied to connect her with the heroin was her presence in the room where the narcotics were found. Moreover, those controverted facts that the government relied on (a) that Crawford had $249 in cash on her person during the raid, (b) that she told a police officer she could "beat this case because I am an addict" and (c) that the officer heard her tell someone over the phone that "(t)hey got me with your stuff," were ambiguous at best with respect to intention to distribute.

192 U.S.App.D.C. at 327 n.17, 591 F.2d at 936 n.17.

Our earlier opinion found that a violation for shoplifting in Maryland could fall within Rule 609(a)(1) because that offense is punishable by imprisonment for more than one year regardless of whether the offense is a felony (when items valued at $100 or more are taken) or a misdemeanor (less than $100). Id. at 325, 591 F.2d at 934. But we noted that the trial judge "made no determination of the kind required by (Rule 609(a)(1)) . . . as a Sine qua non of admissibility to impeach . . . ." Id. at 325-26, 591 F.2d at 934-35 (emphasis in original).

We also rejected the government's argument that shoplifting inherently involves "dishonesty" under Rule 609(a)(2) and is therefore admissible without the finding required by 609(a)(1) that the probative value of the offense outweighs its prejudicial effect. Although the statutory basis for the shoplifting conviction was not in the record, we could locate only one Maryland shoplifting statute, 27 Md.Ann.Code § 551 A (1976 & Cum.Supp.1977), subsection (a) of which lists five ways an offense can be committed. ⁹ In our prior opinion we found that at least the first type of shoplifting listed in that statute is not Per se deceitful and concluded: "Hence, without knowing if, and under which subsection, Crawford was convicted of shoplifting under section 551A(a), or at least the circumstances of her offense, we are unable to uphold admissibility under 609(a)(2)." 192 U.S.App.D.C. at 327, 591 F.2d at 936. The case was remanded, therefore, as to one narcotics conviction, ¹⁰ with the following instruction:

. . . The trial court must also, as to her remaining heroin-related conviction, reconsider the admissibility of her prior...