U.S. v. Williams

• Decision Date: 18 July 1991
• Docket Number: No. 89-50241,89-50241
• Citation: 939 F.2d 721
• Parties: 33 Fed. R. Evid. Serv. 676 UNITED STATES of America, Plaintiff-Appellee, v. Gerald Mark WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 721

939 F.2d 721

33 Fed. R. Evid. Serv. 676

UNITED STATES of America, Plaintiff-Appellee, v. Gerald Mark WILLIAMS, Defendant-Appellant.

No. 89-50241.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 1991.

Decided July 18, 1991.

Andrew French Loomis, Oakland, Cal., for defendant-appellant.

Alan G. Dahle, Sp. Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before BEEZER, HALL and TROTT, Circuit Judges.

TROTT, Circuit Judge:

Gerald Mark Williams was convicted by a jury of two counts of possession of cocaine with intent to distribute. See 21 U.S.C. Sec. 841(a)(1) (1988). Although Williams himself placed his prior narcotics conviction before the jury during direct examination, he challenges the district court's in limine ruling that evidence of the conviction would be admissible under Fed.R.Evid. 609(a)(1) if offered by the prosecution. He also appeals the court's decision to sentence him under the mandatory minimum ten-year sentence provision of 21 U.S.C. Sec. 841(b)(1)(B), rather than under the United States Sentencing Guidelines. We have jurisdiction pursuant to 18 U.S.C. Sec. 3742 and 28 U.S.C. Sec. 1291, and we affirm.

I Admissibility of the Prior Conviction

The district court ruled in limine that the prosecution could admit into evidence for impeachment purposes under Rule 609(a)(1) Williams's prior state conviction for possession of marijuana for sale. Faced with this adverse ruling, defense counsel informed the court that she would elicit the fact of the prior conviction during her direct examination of Williams, which she later did. The prosecution did not refer to the prior conviction at trial, so the jury's only knowledge of it came from the brief colloquy between Williams and his attorney.

In Shorter v. United States, 412 F.2d 428, 431 (9th Cir.), cert. denied, 396 U.S. 970, 90 S.Ct. 454, 24 L.Ed.2d 436 (1969), we confronted a case nearly identical to the one presented here. The defendant in Shorter appealed the district court's in limine ruling that his prior convictions were admissible for impeachment purposes, though defendant's attorney had introduced evidence of the convictions through defendant's own testimony on direct examination. We reasoned:

We need not now decide whether the prosecution's use of prior convictions obtained without counsel for impeachment purposes violates the rationale of Burgett. In the case at bar the prior convictions were not offered by the prosecutor; they were offered by the testimony of appellant himself. While the prosecutor stated that he intended to offer the priors if appellant took the stand and the court indicated it would admit them if offered, the prosecutor never had a chance either to do so or to change his mind. Appellant did not wait to see if the priors would in fact be offered and then object to them; rather, he offered the evidence himself as a matter of trial strategy, probably to soften the anticipated blow in the eyes of the jury. Having adopted this strategy, which appeared to be in his best interest, he cannot now be heard to complain that his own act of offering such evidence violated his constitutional rights. We therefore hold appellant's contention to be without merit.

(footnote omitted) (emphasis in original). ¹ Relying on Shorter, we observed in a later case that, even if the prior conviction at issue had been inadmissible, there was no reversible error because "[i]t was [defendant's] counsel who, perhaps for some strategic purpose, first introduced the fact of the prior conviction into evidence." United States v. Bryan, 534 F.2d 205, 206 (9th Cir.1976) (per curiam); see also United States v. Hauff, 395 F.2d 555, 557 (7th Cir.), cert. denied, 393 U.S. 843, 89 S.Ct. 124, 21 L.Ed.2d 113 (1968) (defendant waived objection to adverse ruling "since it was the defendant's attorney who introduced the prior conviction at the time defendant took the witness stand...."). ²

The present case is controlled by Shorter and Bryan. Shorter is particularly apposite because in that case, as here, there was a specific ruling in advance of trial that the prior convictions would be admissible if the prosecution chose to use them. In both cases, as here, the defense made a strategic decision to introduce the evidence preemptively, to soften its anticipated effect on the jury. ³ Indeed, in one respect the Shorter rule is less harsh as applied here than in Shorter: When the defendant in Shorter made his preemptive strike, he forfeited a constitutional challenge to the admission of his prior convictions, whereas in this case Williams based his objection solely on the Federal Rules of Evidence.

We realize, of course, that the Shorter rule restricts a time-tested technique employed by defense attorneys. As a result of the rule, defense attorneys must choose between softening the impact of the prior conviction on the jury and preserving the Rule 609 objection for appeal. The former route often will be taken because, if the defendant allows the prosecution to expose his criminal history, the effect on his case may be devastating; the jury may infer that the defendant is attempting to hide his prior convictions and will likely focus more on them in assessing his credibility. A holding based on this concern, however, is foreclosed by Shorter and Bryan.

Even if our decision were not compelled by this precedent, the Supreme Court's subsequent opinion in Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), would point us in the same direction. Before Luce, the law of this circuit was that a defendant could refrain from testifying and still preserve for appeal an objection to an adverse in limine evidentiary ruling under Rule 609. See United States v. Cook, 608 F.2d 1175, 1186 (9th Cir.1979) (en banc), cert. denied, 444 U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980). In Luce, the Court held that "to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify." Luce, 469 U.S. at 43, 105 S.Ct. at 464. The Court reached this result for the following reasons:

A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context. This is particularly true under Rule 609(a)(1), which directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant. To perform this balancing, the court must know the precise nature of the defendant's testimony, which is unknowable when, as here, the defendant does not testify.

Any possible harm flowing from a district court's in limine ruling permitting impeachment by a prior conviction is wholly speculative. The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant's proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling. On a record such as here, it would be a matter of conjecture whether the District Court would have allowed the Government to attack petitioner's credibility at trial by means of the prior conviction.

When the defendant does not testify, the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction. If, for example, the Government's case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible prior conviction.

Id. at 41-42, 105 S.Ct. at 463 (footnotes omitted).

Luce teaches that the admissibility of a prior conviction for impeachment depends to a great extent on the nature of the defendant's testimony. In practice, it is often difficult to determine in advance of this testimony whether the use of such a powerful form of impeachment is justified. This is particularly the case where, as here, the prior conviction teeters on the edge of inadmissibility due to its low impeachment value, old age, and similarity to the crime charged. See, e.g., United States v. Wallace, 848 F.2d 1464, 1473 n. 12 (9th Cir.1988) (listing the factors governing admissibility). Even if the district court rules before trial that the prior conviction will be admissible if offered, based on the defendant's expected defense, it is always possible that the court will change its mind on hearing the defendant's actual testimony. The district court should retain discretion to reverse itself when this testimony brings into sharper focus the question of admissibility.

Another lesson of Luce is that the government should be free to decide against introducing a prior conviction when, for example, it appears later at trial that there is less need to impeach the defendant than previously thought, or that there are other less problematic means of impeachment available. In some percentage of cases, the parties' skirmish over the admissibility of a prior conviction will end in a truce, as the government decides in a moment of prudence to lay down this potent weapon, fearing it may backfire on appellate review. The benefit of such a peaceful resolution, of course, is that a potentially reversible error, and its appeal, are avoided altogether.

By bringing out the fact of the prior conviction during her direct examination of Williams, Williams's attorney deprived the court and the government of a last chance to reverse their pre-stated positions. Were we to sanction such a strategy, we would in effect be licensing defendants to plant irremediable errors in their trials during direct examination. While the choice between preempting the prosecution and preserving the Rule 609 objection for appeal may be perilous, it is no more so than many other decisions defense attorneys must make at trial. Informed by Shorter, Bryan and Luce, we...