U.S. v. Pickard, Case No. 00-40104-01/02-RDR.
| Decision Date | 20 June 2002 |
| Docket Number | Case No. 00-40104-01/02-RDR. |
| Citation | 211 F.Supp.2d 1287 |
| Parties | UNITED STATES of America, Plaintiff, v. William PICKARD and Clyde Apperson, Defendants. |
| Court | U.S. District Court — District of Kansas |
Gregory G. Hough, Office of the United States Attorney, Topeka, KS, for Plaintiff.
William K. Rork, Mark L. Bennett, Jr., Bennett, Hendrix & Moylan, L.L.P., Rork Law Office, Topeka, KS, for Defendants.
The government has filed a motion in limine regarding the testimony of Gordon Todd Skinner. The government seeks an order barring the defendants, their counsel and any defense witnesses from offering any evidence, soliciting any testimony, or making any reference concerning the following accusations and allegations regarding Skinner:1
(1) conviction for possession of an Interpol Identification Badge;
(2) alleged writing of counterfeit checks to Pickard;
(3) alleged overdose on controlled substances while in San Francisco, California in 1998;
(4) the filing of bankruptcy in 1992 in Oklahoma and allegations of fraud related to the bankruptcy;
(5) grant of immunity in this matter and details relating to it;
(6) alleged elusion of prosecution for the homicide of Paul Hubelak in Pottawatomie County, Kansas in April 1999;
(7) alleged theft of stereo speakers and equipment in Pottawatomie County, Kansas;
(8) civil RICO, fraud and securities violations resulting from the alleged fact that Skinner made fraudulent representations to members of Financial Operations Group which allegedly resulted in debts of over $1.3 million;
(9) alleged "bizarre public behavior" while under the influence of controlled substances;
(10) alleged deception of law enforcement officials concerning true amount of Ergotamine Tartrate that he had in his possession and control;
(11) alleged violation of State of New Jersey wiretapping statute in case of State v. Worthy, 141 N.J. 368, 661 A.2d 1244 (1995);
(12) alleged deception of true ownership of Atlas E facility in Wamego, Kansas;
(13) alleged maintenance of LSD laboratory while on pretrial release in case noted in paragraph 1;
(14) alleged distribution of Fentanyl to an unnamed individual at the Atlas E facility, which individual allegedly overdosed and subsequently was treated by Skinner;
(15) polygraph examination where Skinner was found to be deceptive;
(16) alleged drug use and other distributions at various times;
(17) alleged incident involving Skinner's children and narcotics;
(18) alleged statement by Skinner to Pottawatomie County Sheriff regarding "large cache of arms and ammo."
The government contends that the aforementioned matters are not admissible under Fed.R.Evid. 609 or 608(b). The government spends most of their discussion on the issue of whether Rule 609 bars this material. As noted by the defendants, the only conviction noted in all of this material is that found in paragraph 1—the conviction for possession of an Interpol Identification Badge.
This motion presents problems for the court because we do not have much information on some of these matters. Any attempt to preclude the introduction of evidence when we do not know all of the details is difficult, at best.
Under Rule 609, the credibility of a witness can be impeached by (1) admission of a crime that is a felony if the probative value of admitting this evidence outweighs its prejudicial effect; and (2) evidence of a crime where it involves dishonesty or false statement.
Skinner has been convicted of possession of an Interpol Identification Badge in violation of 18 U.S.C. § 1028(a)(6). This statute asserts that "whomever ... knowingly possesses an identification document that is or appears to be an identification document of the United States which is stolen or produced without lawful authority knowing that such document was stolen or produced without such authority" shall be guilty of an offense against the United States. The violation of this statute is a misdemeanor.
Since the crime of conviction is a misdemeanor, then it can only be admitted under Rule 609(a)(2). Thus, it must be a crime involving dishonesty or false statement. This type of crime must involve "some element of deceit, untruthfulness, or falsification which would tend to show that an accused would be likely to testify untruthfully." United States v. Mejia-Alarcon, 995 F.2d 982, 988-89 (10th Cir.1993).
Contrary to the suggestion of the government, the court finds there is little argument that this crime falls within Rule 609(a)(2). Skinner's conviction for possession of a fraudulent document clearly reflects upon his ability to testify truthfully. Accordingly, the court finds that this conviction is fair game under Rule 609(a)(2).
To the extent that the government contends that the remainder of the matters are not admissible under Rule 609, we must agree. The court does not find any other reference to a conviction in these materials. Nevertheless, as pointed out by the defendants, we must consider if any of the other matters are admissible under Rule 608(b).
Rule 608 provides that, with limitations, the credibility of a witness may be attacked or supported by evidence of the witness's character for truthfulness or untruthfulness. Rule 608(b) provides that, under certain circumstances, specific instances of the witness's conduct relating to credibility may be inquired into on cross-examination. Specifically, it provides as follows:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
The giving of testimony, whether by an accused or any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to credibility.
Several things must be considered in applying Rule 608(b). First, Rule 608(b) seeks to minimize the dangers attendant on the use of character evidence for impeachment by limiting it to evidence that is relevant to the witness' character for truthfulness. Fed.R.Evid. 608(b). Second, Rule 608(b) is subject to the overriding protection of Fed.R. Evid. 403, which requires the exclusion of evidence whose probative value is substantially outweighed by the danger of prejudice, confusion or waste of time. See Telum, Inc. v. E.F. Hutton Credit Corp., 859 F.2d 835, 839 (10th Cir.1988), cert. denied, 490 U.S. 1021, 109 S.Ct. 1745, 104 L.Ed.2d 182 (1989) (); United States v. Mangiameli, 668 F.2d 1172, 1175-76 (10th Cir.), cert. denied, 456 U.S. 918, 102 S.Ct. 1776, 72 L.Ed.2d 179 (1982) (). Third, Rule 611 bars harassment and undue embarrassment of witnesses. Fed. R.Evid. 611. Fourth, under both Rule 608(b) and the Federal Rules of Evidence in general, the trial court has considerable discretion to control the admission of character evidence. See United States v. Ortiz, 5 F.3d 288, 290-91 (7th Cir.1993).
One other important consideration for the application of Rule 608(b) is the policy against the use of extrinsic evidence. Specific instances of a witness' conduct, other than a conviction of a crime, that are offered to attack or support a witness' credibility may not be proved by extrinsic evidence. Fed.R.Evid. 608(b). Evidence is "extrinsic" if offered through documents or other witnesses, rather than through cross-examination of the witness himself or herself. This means that only cross-examination may be employed to expose dishonest acts. See United States v. Martinez, 76 F.3d 1145, 1150 (10th Cir.1996) ().
As noted earlier, the court has some difficulty in excluding certain evidence without a full understanding of the details involved. With this background, the court finds that it cannot grant the government's motion in limine on the following matters: (1) bankruptcy fraud, United States v. Cusmano, 729 F.2d 380, 383 (6th Cir.1984); (2) fraudulent activity, United States v. Gay, 967 F.2d 322, 327-28 (9th Cir.1992), cert. denied, 506 U.S. 929, 113 S.Ct. 359, 121 L.Ed.2d 272 (1992); (3) misrepresentation, United States v. Crippen, 570 F.2d 535, 538-39 (5th Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979); and (4) theft, United States v. Smith, 80 F.3d 1188, 1193 (7th Cir.1996). This would allow the defendants to examine Skinner on the aforementioned matters designated as numbers 1, 2, 4, 7 and 8. Accordingly, the court shall deny the government's motion on these matters.
The court shall now turn to the other matters addressed in the government's motion. The court notes that the government has sought to exclude evidence of Skinner's prior drug use (Nos. 3, 9, 16 and 17). Drug use is not admissible under Rule 608(b) because it is not probative of truthfulness. United States v. McDonald, 905 F.2d 871, 875 (5th Cir.), cert. denied, 498 U.S. 1002, 111 S.Ct. 566, 112 L.Ed.2d 572 (1990); United States v. Rubin, 733 F.2d 837, 841-42 (11th Cir. 1984). However, a witness' prior drug use may be admitted to show...
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