U.S. v. Millings, 75-2075

• Citation: 535 F.2d 121,175 U.S. App. D.C. 293
• Decision Date: 13 May 1976
• Docket Number: No. 75-2075,75-2075
• Parties: , 1 Fed. R. Evid. Serv. 239 UNITED STATES of America v. Andre M. MILLINGS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 121

535 F.2d 121

175 U.S.App.D.C. 293, 1 Fed. R. Evid. Serv. 239

UNITED STATES of America v. Andre M. MILLINGS, Appellant.

No. 75-2075.

United States Court of Appeals, District of Columbia Circuit.

Argued April 16, 1976.

Decided May 13, 1976.

Joel I. Klein, Washington, D.C. (appointed by this court), for appellant.

Alexia Morrision, Asst. U.S. Atty., with whom Earl J. Silbert, U.S. Atty., John A. Terry and John L. Kern, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.

Before MacKINNON and ROBB, Circuit Judges and WEIGEL, ^* United States District Judge for the Northern District of California.

Opinion for the Court filed by Circuit Judge ROBB.

ROBB, Circuit Judge:

The appellant Millings was convicted by a jury on an indictment in three counts charging him with distribution of phenmetrazine (Preludin) in violation of 21 U.S.C. § 841(a). Sentenced to concurrent terms of imprisonment on each count, pursuant to 18 U.S.C. § 5010(b), he appeals.

At trial the case for the government was that on three occasions Millings had sold phenmetrazine pills to an undercover police officer named Fitzgerald. The officer testified that the sales took place on the street. Millings testified in his own defense that he had seen the officer several times on the street, but had not sold him any drugs and specifically had not seen him on the dates when the sales were alleged to have taken place.

Over the objection of the defendant the prosecutor was allowed to ask him whether he was the same man who on July 17, 1974 had pleaded guilty to a charge of carrying a pistol without a license in violation of 22 D.C.Code § 3204 ¹ and a charge of possession of heroin in violation of 33 D.C.Code § 402. ² The defendant answered in the affirmative. The question before us is whether this impeachment was permissible under Fed.R.Evid., Rule 609, 28 U.S.C.A. § 609, 88 Stat. 1935. We think it was not.

Rule 609(a) provides:

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination 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.

Since the offenses about which Millings was cross-examined were misdemeanors not punishable by death or imprisonment in excess of one year, the question is narrowed to whether they "involved dishonesty or false statement" within the intendment of Section (a)(2) of the Rule.

The authoritative gloss on the phrase "dishonesty or false statement" is found in the Joint Explanatory Statement of the Committee of Conference of the House and Senate, which reported out the bill (H.R. 5463) that enacted the Federal Rules of Evidence. According to the Joint Statement

(b)y the phrase "dishonesty and false statement" the Conference means crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involved some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully.

The admission of prior convictions involving dishonesty and false statement is not within the discretion of the Court. Such convictions are peculiarly probative of credibility and, under this rule, are always to be admitted. Thus, judicial discretion granted with respect to the admissibility of other prior convictions is not applicable to those involving dishonesty or false statement.

Conference Report on the Federal Rules of Evidence, No. 93-1597, 93rd Cong., 2d Sess. at 9, U.S.Code Cong. & Admin.News 1974, pp. 7098, 7103.

The term "crimen falsi" used in the Conference Committee's definition

involves the element of falsehood, and includes everything which has a tendency to injuriously affect the administration of justice by the introduction of falsehood and fraud. A crime less than felony that by its nature tends to cast doubt on the veracity of one who commits it. This phrase is also used as a general designation of a class of offenses, including all such as involve deceit or falsification; e.g., forgery, counterfeiting, using false weights or measures, perjury, etc. Includes forgery, perjury, subornation of perjury, and offenses affecting the public administration of justice.

Black's Law Dictionary (4th Ed. 1968) Crimen Falsi, (citations omitted.)

We are not persuaded by the government's argument that the offenses of carrying a pistol without a license and possessing narcotics involve "some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully." An intent to deceive or defraud is not an element of either offense. One may violate 22 D.C.Code § 3204 by carrying a pistol openly; and neither concealment, falsification or deceit is an element of the offense of possessing narcotics unlawfully. So far as the elements of deceit, untruthfulness or falsification are concerned both offenses are comparable to simple assault, which the government in United States v. Belt, 169 U.S.App.D.C. 1, 514 F.2d 837 (1975, en banc ) conceded does not involve dishonesty or false statement. Certainly we cannot say that either offense, in the language of the Conference Committee, is "peculiarly probative of credibility". Although it may be argued that any willful violation of law, such as carrying a pistol without a license or the unlawful possession of narcotics, evinces a lack of character and a disregard for all legal duties, including the obligations of an oath, Congress has not accepted that expansive theory. On the contrary, as we observed in United States v. Belt, 169 U.S.App.D.C. 1, 9, 514 F.2d 837, 845 (1975, en banc ), Congress has "narrowly defined" the offenses comprehended by Rule 609(a)(2).

The government refers us to decisions of this court holding that narcotics offenses may be used to impeach a witness. United States v. McIntosh, 138 U.S.App.D.C. 237, 426 F.2d 1231 (1970); Evans v. United States, 130 U.S.App.D.C. 114, 397 F.2d 675, cert. denied, 394 U.S. 907, 89 S.Ct. 1016, 22 L.Ed.2d 218 (1969); Brooke v. United States, 128 U.S.App.D.C. 19, 385 F.2d 279 (1967). In those cases however the question...