U.S. v. Sims, 78-5082

• Decision Date: 12 December 1978
• Docket Number: No. 78-5082,78-5082
• Citation: 588 F.2d 1145
• Parties: 3 Fed. R. Evid. Serv. 1473 UNITED STATES of America, Plaintiff-Appellee, v. James Dewey SIMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1145

588 F.2d 1145

3 Fed. R. Evid. Serv. 1473

UNITED STATES of America, Plaintiff-Appellee, v. James Dewey SIMS, Defendant-Appellant.

No. 78-5082.

United States Court of Appeals,

Sixth Circuit.

Argued Oct. 10, 1978.

Decided Dec. 12, 1978.

William Gary Crabtree, London, Ky., for defendant-appellant.

Patrick H. Molloy, U. S. Atty., Robert F. Trevey, Asst. U. S. Atty., Lexington, Ky., for plaintiff-appellee.

Before PHILLIPS, Chief Judge, and LIVELY and ENGEL, Circuit Judges.

PHILLIPS, Chief Judge.

This appeal presents the question of whether the district court abused its discretion by permitting the Government to impeach the appellant by introducing evidence of two prior felony convictions which were more than ten years old, in violation of Rule 609(b) of the Federal Rules of Evidence.

James Dewey Sims appeals from his jury conviction for possession of a firearm as a previously convicted felon in violation of 18 U.S.C.Appendix § 1202(a) (1). On March 15, 1977, Sims was arrested in Pulaski County, Kentucky, while driving his automobile. During a search of Sims' vehicle, a Pulaski County deputy sheriff found a .38 caliber revolver underneath the front seat on the driver's side. Sometime in March 1977, that same .38 caliber revolver had been stolen from the home of one of Sims' neighbors. Sims was indicted and convicted on a single count indictment charging him with being a convicted felon in possession of a firearm. The underlying felony conviction recited in the indictment was the conviction of Sims on May 18, 1970, in the McCreary County Circuit Court at Whitley City, Kentucky, of the felony crime of knowingly possessing stolen property.

Sims testified that he had no knowledge of the pistol being in his vehicle. He stated that on Thursday, March 10, 1977, his son and a neighbor boy cleaned out the vehicle, including the space beneath the driver's seat. On the following day Sims traveled from Somerset, Kentucky, to Cincinnati, Ohio, attend the funeral of a relative. He testified that he was unaware that the pistol was in his car until it was found by the deputy sheriff.

In addition to appellant's 1970 felony conviction, the prosecution introduced, for the purpose of impeachment, evidence of two other prior felony convictions of appellant, both of which were more than ten years old. One was a 21 year old conviction for burglary in 1956. The second was a 12 year old conviction for interstate transportation of a stolen motor vehicle in 1965.

A previous trial of Sims on this indictment resulted in a deadlocked jury. Evidence of his two old convictions, the 1956 conviction for burglary and the 1965 conviction for interstate transportation of a stolen vehicle, were not introduced in the earlier trial.

The sole issue on appeal is whether it was reversible error to allow impeachment of appellant by evidence of the two prior felony convictions, both more than ten years old.

Section 609 of the Federal Rules of Evidence provides as follows:

Rule 609. Impeachment by Evidence of Conviction of Crime

(a) General rule. 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.

(b) 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, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

In the version of the Federal Rules of Evidence adopted by the Supreme Court in 1972, Rule 609(b) was as follows:

(b) 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 release of the witness from confinement imposed for his most recent conviction, or the expiration of the period of his parole, probation, or sentence granted or imposed with respect to his most recent conviction, whichever is the later date.

The Advisory Committee note states:

Few statutes recognize a time limit on impeachment by evidence of conviction. However, practical considerations of fairness and relevancy demand that some boundary be recognized.

The rule was revised successively in the House, in the Senate, and in the Conference. 10 Moore's Federal Practice, P (1.-11) at VI-120 (2d ed. 1976.) ¹ The legislative history surrounding these revisions evidences a basic distrust in the probative value of convictions more than ten years old when evidence of such convictions is used to impeach the credibility of a witness.

The legislative history further demonstrates an intent that evidence of convictions more than ten years old should be admitted very rarely and only in exceptional circumstances. The House version of the rule, like the original version adopted by the Supreme Court, took the unequivocal position that evidence of convictions more than ten years could never be admitted for impeachment. ²

The Senate adopted a modified version of the House proposal, but included exacting standards for admission of prior convictions. The Senate version allowed the use of convictions more than ten years old for impeachment purposes under limited articulated circumstances. The Senate Judiciary Committee reported as follows: ³

Although convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness. Rather than exclude all convictions over 10 years old, the committee adopted an amendment in the form of a final clause to the section granting the court discretion to admit convictions over 10 years old, but only upon a determination by the court that the probative value of the conviction supported by specific facts and circumstances, substantially outweighs its prejudicial effect.

It is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances. The rules provide that the decision be supported by specific facts and circumstances thus requiring the court to make specific findings on the record as to the particular facts and circumstances it has considered in determining that the probative value of the conviction substantially outweighs its prejudicial impact. It is expected that, in fairness, the court will give the party against whom the conviction is introduced a full and adequate opportunity to contest its admission.

The Conference Committee adopted the Senate version but added the requirement for advance notice of intention to request the court to allow evidence of a conviction older than ten years. ⁴ The Conference Committee version, which became law, reflects the apprehension of the Supreme Court and both Houses of Congress that stale convictions have little, if any, probative value for determining the credibility of a witness, and their admission into evidence should be allowed only in exceptional circumstances.

An important purpose of Rule 609(b) is to avoid convicting criminal defendants as a result of prejudice caused by the cumulative effect of old criminal convictions. When stale convictions are offered for the purpose of impeaching a witness, they often shed little light on the present tendency of the witness towards truthfulness and veracity. In United States v. Harding,525 F.2d 84, 89 (7th Cir. 1975), the court stated:

When the prior conviction is used to impeach a defendant who elects to take the stand to testify in his own behalf, two inferences, one permissible and the other impermissible, inevitably arise. The fact that the defendant has sinned in the past implies that he is more likely to give false testimony than other witnesses; it also implies that he is more likely to have committed the offense for which he is being tried than if he had previously led a blameless life. The law approves of the former inference but not the latter.

In United States v. Belt, 169 U.S.App.D.C. 1, 9, 514 F.2d 837, 845 (D.C.Cir. 1975), the court stated that Rule 609(b) should be applied "to criminal defendants where impeachment 'presents a danger of improperly influencing the outcome of the trial by persuading the trier of fact to convict the defendant on the basis of his prior criminal record.' " Cf. United States v. Johnson, 542 F.2d 230, 234-35 (5th Cir. 1976). In Abbott Labs., Ross Labs. Division v. N. L. R. B., 540 F.2d 662, 667 (4th Cir. 1976), the Fourth Circuit cited Rule 609(b) as analogous support for its proposition that "Hall's prior criminal record of twenty years earlier did not require that he be disbelieved."

Under Rule 609(b), the district judge must make "an on-the-record finding based on specific facts and circumstances that the probative value of the evidence substantially outweighs the danger of unfair prejudice." United States v. Mahler, 579 F.2d 730, 734 (2d Cir. 1978).

In United States v. Mahone, 537 F.2d 922, 929 (7th Cir.), Cert. denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976), the court set down the following test for the admission of prior felony...