U.S. v. Estes

• Decision Date: 12 March 1993
• Docket Number: No. 92-2490,92-2490
• Citation: 994 F.2d 147
• Parties: 37 Fed. R. Evid. Serv. 514 UNITED STATES of America, Plaintiff-Appellee, v. Ralph Edward ESTES, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 147

994 F.2d 147

37 Fed. R. Evid. Serv. 514

UNITED STATES of America, Plaintiff-Appellee, v. Ralph Edward ESTES, Defendant-Appellant.

No. 92-2490

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

March 12, 1993.

Roland E. Dahlin, II, Federal Public Defender, Dola Young, Asst. Federal Public

Defender, Houston, TX, for defendant-appellant.

Paula C. Offenhauser, James L. Turner, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, TX, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:

BACKGROUND

Ralph Edward Estes was convicted of being a felon in possession of a firearm and was sentenced to 180 months' imprisonment and three years' supervised release, The Government's chief witness was Deputy Douglas Yeager, who testified that he stopped Estes for a traffic violation and discovered the firearm in his possession. Prior to trial, the Government filed a motion in limine to exclude evidence of Deputy Yeager's prior state misdemeanor conviction for impersonating a public official. The conviction was approximately 12 years old. The Government sought to prevent Estes from making any reference to this conviction to impeach Yeager. Estes argued that Federal Rule of Evidence 609(b) gave the district court the discretion to admit the evidence. He argued that Yeager's conviction was extremely probative of his credibility and that its admission was necessary.

The district court's ruling on this issue is not part of the record. Estes contends that the district court ruled on the Government's motion in limine at the same hearing at which it considered his motion to suppress certain other evidence. Estes has filed a motion to supplement the record with the transcript of the proceedings at that hearing on March 17, 1992. The district court's minute entry for March 17 indicates that it denied the motion to suppress, but it does not refer to a ruling on the motion in limine. The court entered an order denying the motion to suppress on March 30, again with no mention of the motion in limine. Defense counsel requested the transcript of the trial proceedings for March 17, but did not request the transcript of the hearing, which was evidently conducted on the morning of trial. Estes did not attempt to introduce Yeager's conviction on cross-examination.

OPINION

Estes argues that the district court erred in refusing to admit evidence of Yeager's prior conviction. He contends that the district court failed to perform the balancing test required by Fed.R.Evid. 609(b) and relied only on the age of the conviction as a basis for excluding the evidence. He contends that this conviction was probative of Yeager's credibility and was critical evidence because the evidence against him came exclusively from Yeager. He argues that the Government has failed to show any danger of prejudice from admission of this evidence. The Government argues that Estes waived review by failing to include a transcript of the court's ruling, that Estes' failure to attempt to offer evidence of Yeager's conviction at trial limits this Court's review to plain error, and that it was not plain error to exclude the evidence or to fail to conduct the balancing test on the record.

Fed.R.Evid. 609(a) allows a witness's credibility to be impeached by evidence of prior convictions punishable by death or imprisonment in excess of one year, provided the court determines that the probative value of the evidence outweighs its prejudicial effect. United States v. Turner, 960 F.2d 461, 465 (5th Cir.1992). Fed.R.Evid. 609(b) provides that evidence of such convictions is not admissible if the conviction is more than ten years old, unless the court determines that the probative value of the conviction substantially outweighs its prejudicial effect. United States v. Cathey, 591 F.2d 268, 274-75 (5th Cir.1979).

The district court has broad discretion in its application of this rule. Turner, 960 F.2d at 465; and when made, the weighing of probative value and prejudicial effect must be made on the record. Id. This Court has stated that this requirement is mandatory rather than discretionary. United States v. Acosta, 763 F.2d 671, 695 (5th Cir.), cert. denied, 474 U.S. 863, 106 S.Ct. 179, 88 L.Ed.2d 148 (1985).

We do not know exactly why the court granted the Government's motion in limine to exclude evidence of Yeager's conviction because it is not a part of the record. Estes asserts that ...