U.S. v. Toney

• Decision Date: 09 April 1980
• Docket Number: No. 78-5433,78-5433
• Citation: 615 F.2d 277
• Parties: 5 Fed. R. Evid. Serv. 1310 UNITED STATES of America, Plaintiff-Appellee, v. James Finis TONEY, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 277

615 F.2d 277

5 Fed. R. Evid. Serv. 1310

UNITED STATES of America, Plaintiff-Appellee, v. James Finis TONEY, Jr., Defendant-Appellant.

No. 78-5433.

United States Court of Appeals Fifth Circuit.

April 9, 1980.

Ronald W. Maxwell, Jacksonville, Fla., for defendant-appellant.

Thomas E. Morris, Asst. U. S. Attys., Jacksonville, Fla., for plaintiff-appellee.

Appeal from the United States District Court from the Middle District of Florida.

Before TUTTLE, TJOFLAT and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge:

This case presents the question whether a district court has the discretion under rule 403 of the Federal Rules of Evidence ¹ to prohibit the impeachment of a witness with a conviction for a crime involving dishonesty or false statement (a crimen falsi ). ² We hold that the court has no such discretion and that a cross-examiner has an absolute right to introduce a crimen falsi conviction for impeachment purposes. ³

I

On April 4, 1978, James Finis Toney, Jr. was convicted by a jury of mail fraud, 18 U.S.C. §§ 2, 1341 (1976). Prior to trial, Toney filed a motion in limine to preclude the Government from impeaching his credibility with a prior mail fraud conviction ⁴ if he chose to testify in his own defense. The district court deferred ruling on Toney's motion until trial. During the defense case, the court, in colloquy with counsel, expressed the view that use of the conviction for impeachment would be so prejudicial to Toney that he would probably decide not to testify. Record, vol. 9, at 931-32. No one considered, apparently, whether Fed.R.Evid. 609(a)(2) gave the prosecutor an unqualified right to impeach Toney with the conviction. Before it came time for Toney to testify, however, the Government called rule 609(a)(2) to the court's attention, and the court concluded that the rule required it to permit the impeachment. Record, vol. 10, at 1157. Toney did not take the stand and claims that the court's ruling prevented him from doing so.

Though Toney did not testify or even proffer his proposed testimony, and though the jury could not have been influenced by the allegedly prejudicial mail fraud conviction, Toney may, nevertheless, claim reversible error in the district court's disposition, albeit tentative, of his motion to foreclose the prosecution from attempting a line of impeachment. United States v. Langston, 576 F.2d 1138, 1139 (5th Cir.) (per curiam), cert. denied, 439 U.S. 932, 99 S.Ct. 324, 58 L.Ed.2d 327 (1978); see United States v. Hitsman, 604 F.2d 443, 447 (5th Cir. 1979). We conclude that the district court read rule 609(a)(2) correctly, however; it had no discretion to prevent the prosecution's use of the crimen falsi as impeachment evidence. We, therefore, affirm Toney's conviction. ⁵

II

It is established that mail fraud is a crime involving "dishonesty or false statement." United States v. Cohen, 544 F.2d 781, 785 (5th Cir.), cert. denied, 431 U.S. 914, 97 S.Ct. 2175, 53 L.Ed.2d 224 (1977); accord, United States v. Brashier, 548 F.2d 1315, 1326-27 (9th Cir. 1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 565 (1977). Subsection (a)(2) rather than (a)(1) of rule 609 therefore applies in determining the admissibility of a mail fraud conviction for impeachment. Rule 609(a)(2) contains no provision for excluding evidence of a crimen falsi on the ground of undue prejudice; that ground can serve as a basis for excluding such evidence only if rule 403, with its prejudice versus probative value weighing provision, is applicable. Rule 609(a)(2) provides that evidence of a prior criminal conviction for a crimen falsi offense shall be admitted to attack a witness's credibility during cross-examination. When discussing rule 609(a)(2) Congress made this clear:

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.

H.R.Conf.Rep.No.93-1597, 93d Cong., 2d Sess. 9, reprinted in (1974) U.S. Code Cong. & Admin.News, pp. 7098, 7103 (emphasis added). A number of courts have adhered to this congressional intent, observing that a court has no discretion to exclude evidence of a prior crimen falsi conviction. See, e. g., United States v. Fearwell, 193 U.S.App.D.C. 386, 392, 595 F.2d 771, 777 (D.C.Cir.1979); United States v. Hawley, 554 F.2d 50, 52 (2d Cir. 1977).

Despite the unambiguous language of both rule 609(a)(2) and its legislative history, however, both courts and commentators have posed the question whether the general weighing test of rule 403 determines admissibility where prejudice, which always inheres in the introduction of a conviction for impeachment, is likely. See, e. g., United States v. Papia, 560 F.2d 827, 845 n. 10 (7th Cir. 1977); United States v. Hayes, 553 F.2d 824, 827 n. 4 (2d Cir.), cert. denied, 434 U.S. 867, 98 S.Ct. 204, 54 L.Ed.2d 143 (1977); United States v. Smith, 179 U.S.App.D.C. 162, 172-79 n. 20, 551 F.2d 348, 358-59 n. 20 (D.C.Cir.1976); United States v. Dixon, 547 F.2d 1079, 1083 n. 4 (9th Cir. 1976); P. Rothstein, Rules of Evidence 211 (2d ed. 1978); 3 J. Weinstein & M. Berger, Evidence P 609(03a), at 609-73 (1978). At least one commentator has expressed the view that rule 403 should control. Younger, Three Essays on Character and Credibility Under the Federal Rules of Evidence, 5 Hofstra L.Rev. 7, 12 (1976). We hold, however, that Congress meant what it said in rule 609(a)(2) that the fact of a prior conviction for an offense such as mail fraud is always admissible for impeachment purposes.

As we have observed, Congress used absolute language when discussing the admissibility of rule 609(a)(2) offenses. Congress carefully and extensively considered the prior crimes impeachment issue, devoting more time to it than any other rule of evidence. See J. Weinstein & M. Berger, supra. Rule 403 is a general rule, "designed as a guide for the handling of situations for which no specific rules have been formulated." 28 U.S.C. Rules of Evid. Advisory Comm. Notes at 550 (1976). Rule 609(a)(2) is a well-considered, specific provision enacted to cover a distinct issue in the law of evidence. Congress thoroughly considered the pros and cons of the mandatory admissibility of limited types of prior crimes evidence and determined that in certain cases it was to be the rule. Rule 403 simply has no application where impeachment is sought through a crimen falsi. See Note, Impeachment Under Rule 609(a): Suggestions for Confining and Guiding Trial Court Discretion, 71 Nw.U.L.Rev. 655, 661 (1976). The district court was correct when it held that, if Toney took the stand, the Government had the right to impeach him with his prior mail fraud conviction. Accordingly, the judgment of that court is

AFFIRMED.

TJOFLAT, Circuit Judge, concurring:

I concur in Judge Hill's opinion in this case. I write specially, however, because I believe that Toney should not be permitted to raise his evidentiary claims at all. As Judge Hill points out, ante, at 279, Toney, who never took the stand in his own defense or even proffered his proposed testimony, is permitted to appeal the trial court's ruling on the Fed.R.Evid. 609(a)(2) question because of our holding in United States v. Langston, 576 F.2d 1138, 1139 (5th Cir.) (per curiam), cert. denied, 439 U.S. 932, 99 S.Ct. 324, 58 L.Ed.2d 327 (1978). See United States v. Hitsman, 604 F.2d 443, 447 (5th Cir. 1979). In my view, that decision, by which we are bound, was ill-considered.

Prior crimes impeachment under rule 609(a)(1) for a non-crimen falsi is based on a judicial balancing of the need for the impeachment and the potential prejudice to the defendant. Quite often, such a balance will be a fine one, and the court will be torn between the prosecution's right to show a defendant's true colors and the defendant's right to be tried only on the charges of the indictment, not on his prior criminal record. See Fed.R.Evid. 404(b). In Toney's case, the court was moved initially to find that the scale tipped towards exclusion, ante, at 278-279, but ruled as it did because the weighing of probative value vis-a-vis prejudice is foreclosed under rule 609(a) (2).

A court should not be expected to determine before trial whether the defendant will be subject to impeachment under rule 609, even when the defense proffers what the defendant would be expected to say in the event he chose to testify. Rather, the determination should be made only when the actual moment for prior crimes impeachment arrives. At that time, the court will have heard the prosecution's case and part of the defense's case and can assess the impact of the evidence on the jury. Having heard the defendant's testimony on direct examination and on cross, up to the point of the attempted impeachment, the court would be in the best possible position to determine (1) whether the defendant has left himself open to impeachment at all ¹ and, (2) if a non-crimen falsi is involved, whether the probative value of the impeachment outweighs its prejudicial effect.

By reviewing a pretrial ruling on the admissibility of prior crimes for impeachment, we invite resourceful defense counsel to create reversible error. Under the Langston construction of rule 609, reinforced by today's holding, defense counsel might be considered remiss, perhaps incompetent, for not seeking a pretrial determination whether his client will be subject to impeachment with a criminal record. We invite counsel to pursue such a determination even though he has no intention of placing the defendant on the stand in the presence of the jury. If the court rules that the defendant will be subject to prior crimes impeachment, defense counsel holds potential error in his pocket as a...