U.S. v. Lipscomb, 81-1895

• Decision Date: 15 March 1983
• Docket Number: No. 81-1895,81-1895
• Citation: 226 U.S. App. D.C. 312,702 F.2d 1049
• Parties: , 12 Fed. R. Evid. Serv. 1377 UNITED STATES of America, v. Michael A. LIPSCOMB, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1049

702 F.2d 1049

226 U.S.App.D.C. 312, 12 Fed. R. Evid. Serv. 1377

UNITED STATES of America, v. Michael A. LIPSCOMB, Appellant.

No. 81-1895.

United States Court of Appeals,

District of Columbia Circuit.

Argued Feb. 19, 1982.

Reargued En Banc Oct. 27, 1982.

Decided March 11, 1983.

As Amended March 15, 1983.

Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 81-0125).

Steven H. Goldblatt, Washington, D.C. (appointed by this Court), with whom Samuel Dash, Washington, D.C., was on the brief, for appellant.

Marc B. Tucker, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Michael W. Farrell, and Robert B. Cornell, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee. Regina C. McGranery, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellee.

Before ROBINSON, Chief Judge, and WRIGHT, TAMM, MacKINNON, WILKEY, WALD, MIKVA, EDWARDS, GINSBURG, BORK and SCALIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD, in which Chief Judge ROBINSON, and Circuit Judges TAMM, WILKEY, MIKVA, EDWARDS, GINSBURG, BORK and SCALIA concur.

Opinion concurring specially filed by Circuit Judge MacKINNON.

WALD, Circuit Judge:

A jury convicted Michael Lipscomb of possession of heroin with intent to distribute, and he now appeals. Lipscomb did not testify in his own defense; had he done so, the government would have impeached his credibility with an eight-year-old robbery conviction under Rule 609(a)(1) of the Federal Rules of Evidence. Three other defense witnesses did testify and were impeached by prior felony convictions. In ruling that these prior convictions satisfied Rule 609(a)(1)'s requirement that "the probative value of admitting this evidence outweighs its prejudicial effect to the defendant," the district court had before it only the names of the crimes, their dates, and, for the defendant Lipscomb, his age when the robbery was committed.

Lipscomb contends that without some information on the facts and circumstances underlying a prior conviction, the district court cannot determine whether the conviction is probative of a witness' credibility at all or, if it is probative, whether the probative value of the conviction outweighs its prejudicial effect. The government contends that the district court not only does not need to inquire into the facts and circumstances of a prior conviction in order to balance probativeness against prejudice, but should not be permitted to do so. We hold that (1) all convictions that meet the Rule 609(a)(1) threshold are at least somewhat probative of credibility; (2) the trial court has discretion to decide how much background information, if any, it needs to perform Rule 609(a)(1)'s balance of probativeness against prejudice to the defendant; and (3) the district court did not abuse its discretion in this case. We therefore affirm the conviction.

I. BACKGROUND

A. Facts

Lipscomb was tried twice on a charge of possession of heroin with intent to distribute under 21 U.S.C. Sec. 841(a)(1). The first trial ended in a hung jury; the second led to a conviction. ¹ He was sentenced to two For the prosecution, Officer Thomas Gallogly testified that on the afternoon of March 6, 1981, while in plainclothes, he observed a blue Buick parked on the corner of Fourth and Ridge Streets, Northwest, District of Columbia, an area known for heavy narcotics traffic. The car was surrounded by several men. Gallogly saw one of the men approach the car and pass money through the window to the driver in return for a small white object, which Gallogly suspected was a bag of heroin. Two more apparent transactions followed, but Gallogly did not see the objects that were exchanged. Gallogly identified the driver as the defendant Lipscomb. ²

to six years imprisonment. At both trials, the prosecution and the defense offered radically different versions of the events leading to Lipscomb's arrest. Thus, the credibility of the defense witnesses was central to the case.

Lipscomb then drove several blocks, parked again, stepped out of his car, and began talking to someone. Gallogly, who had followed in his own car, got out and approached Lipscomb. Lipscomb turned around, saw Officer Gallogly, and immediately removed an object from his mouth, dropped it on the ground, and stepped on it. At the same time, Officer Gallogly smelled burning marijuana. He identified himself as a police officer and asked Lipscomb for his driver's license, to which Lipscomb replied that he had no license. Gallogly then retrieved the object that Lipscomb had dropped, concluded that it was probably a marijuana cigarette, and arrested Lipscomb for driving without a license and for possession of marijuana. ³

Officer Gallogly searched Lipscomb and found 25 white plastic packets, later determined to contain heroin, and $320 in cash. He also found seven packets of heroin on the floor of the Buick. ⁴ Officer Gallogly's partner, Officer Mark Barrows, was not in a position to see the earlier heroin transactions, but confirmed that Gallogly had found heroin in Lipscomb's pockets. ⁵

Lipscomb testified on his own behalf at the first trial but did not testify at the second trial. He stated that he spent most of the afternoon in question at home with his mother and his girlfriend, Rovetta Williams. He had loaned his car to a friend, Daryl Smith, who came by to drop off the car. Lipscomb then drove the car to Smith's mother's house to drop off Smith, dropped off Williams at her house, and returned to Smith's mother's house to pick up Smith and take him home. As Lipscomb got out of the car, Officers Gallogly and Barrows approached and asked for his driver's license. After Lipscomb stated that he had no license, the officers searched him and found cash but no heroin. They also found no heroin inside the car, but did remove a brown paper bag from the trunk; Lipscomb knew nothing about the bag. The cash was for a trip to New York he planned to take with his girlfriend Williams. ⁶ Lipscomb's story was corroborated by his mother, by his girlfriend, by his friend Smith, and by two other friends, Robert Green and Floyd Little, who claimed to be eyewitnesses to the arrest. ⁷

The government impeached Lipscomb's credibility at the first trial with an eight-year-old robbery conviction and would have impeached his credibility at the second trial if he had testified. ⁸ The government also

                impeached Smith's credibility with a 1980 armed robbery conviction, Green's credibility with a 1976 conviction for accessory after the fact to manslaughter, and Little's credibility with a 1976 robbery conviction. 9   The district court gave appropriate limiting instructions, and Lipscomb's attorney properly requested exclusion of the prior convictions, both before trial and in a post-trial motion for a new trial
                

B. The District Court's Decision to Admit the Prior Convictions

1. Lipscomb

The district court admitted Lipscomb's eight-year-old robbery conviction into evidence under Rule 609(a)(1) of the Federal Rules of Evidence. Rule 609(a) states:

GENERAL RULE. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted ... 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.

Rule 609(b) creates an exception to Rule 609(a) for a prior conviction which is remote in time:

TIME LIMIT. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines ... that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

In ruling that the probativeness of Lipscomb's conviction outweighed its prejudicial effect, the court knew only the name of the offense (robbery), the date of conviction (1973), and Lipscomb's age when the crime was committed (16). ¹⁰ The court did not know the details of the crime, whether Lipscomb had pled guilty or not guilty, or the sentence imposed; it had inquired but the prosecutor stated that he had no more information. ¹¹ The court found that Lipscomb's prior robbery conviction was probative because anyone "desperate enough to rob somebody ... is desperate enough to lie on the witness stand," ¹² and because "the Defendant's testimony will be so important to his defense." ¹³ The court did not discuss the extent of prejudice, but did state for the record that "the probative value of admitting this evidence outweighs the prejudicial effect." ¹⁴

In making this ruling based on limited information, the district court recognized the tension in our cases between, on the one hand, United States v. Crawford, 613 F.2d 1045, 1050-54 (D.C.Cir.1979) (Wald, J.), and, on the other hand, United States v. Jackson,

                627 F.2d 1198, 1208-10 (D.C.Cir.1980) (MacKinnon, J.), and United States v. Lewis, 626 F.2d 940, 945-51 (D.C.Cir.1980) (MacKinnon, J.).    Crawford suggested that inquiry into the facts and circumstances underlying a prior conviction was desirable and often necessary;  Jackson and Lewis suggested that such inquiry was rarely necessary.  The district court concluded that "[t]here are two panels on the Court of Appeals and each has a different theory of this, and the most recent panel ... supports the Government's position [that detailed inquiry is unnecessary] ... and I will let it in." 15
                

2. Smith, Green, and Little

The district court admitted Smith's armed robbery conviction because, as for Lipscomb's conviction, ...