United States v. Jessamy

• Decision Date: 01 June 2020
• Docket Number: CRIMINAL NO. 3:19-174
• Citation: 464 F.Supp.3d 671
• Parties: UNITED STATES of America v. Turhan JESSAMY, Defendant
• Court: U.S. District Court — Middle District of Pennsylvania

464 F.Supp.3d 671

UNITED STATES of America

v.Turhan JESSAMY, Defendant

CRIMINAL NO. 3:19-174

United States District Court, M.D. Pennsylvania.

Signed June 1, 2020

Alisan V. Martin, U.S. Attorney's Office, Williamsport, PA, for United States of America.

Brandon R. Reish, Federal Public Defender's Office, Scranton, PA, for Defendant.

MEMORANDUM

MALACHY E. MANNION, United States District Judge

Pending before the court is the defendant Turhan Jessamy's ("Jessamy") motion in limine to exclude or limit reference to his criminal convictions, (Doc. 27), and a motion for proposed venire video, (Doc. 29). For the reasons set forth below, the motion in limine will be GRANTED in part and DENIED in part , and the motion for proposed venire video will be DENIED .

I. BACKGROUND

Jessamy is an inmate at the United States Penitentiary, Canaan, who is currently serving a federal sentence following his entry of a guilty plea to discharging a firearm in furtherance of a crime of violence—to wit, conspiracy to commit robbery, in violation of 18 U.S.C. §§ 924(c)(1)(a)(iii) and 924(c)(2). On June 4, 2019, he was indicted on one count of assault in violation of 18 U.S.C. § 113(a)(3) (Count I), and one count of possession of contraband in prison in violation of 18 U.S.C. § 1791(a)(2). (Doc. 1). The charges stemmed from a July 25, 2018 incident where corrections officers observed Jessamy approach and strike another inmate in a slicing motion with an unidentified object in his hand. Afterward, correction officers discovered a shank in the area of the yard where the incident occurred. Jessamy admitted to assaulting the victim but denied doing so with a weapon.

On June 7, 2019, Jessamy entered a not guilty plea and, on January 13, 2020, he filed the present motions. The government filed its brief in opposition on February 24, 2020, (Doc. 35), and Jessamy filed a reply brief on March 3, 2020. (Doc. 36).

II. DISCUSSION

a. Motion in Limine

"The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence." United States v. Tartaglione , 228 F.Supp.3d 402, 406 (E.D. Pa. 2017). On a motion in limine , evidence should only be excluded "when the evidence is clearly inadmissible on all potential grounds." Id. Evidentiary rulings on motions in limine are subject to the trial judge's discretion and are therefore reviewed for an abuse of discretion. Abrams v. Lightolier, Inc. , 50 F.3d 1204, 1213 (3d Cir. 1995) ; Bernardsville Bd. of Educ. v. J.H. , 42 F.3d 149, 161 (3d Cir. 1994). "The Court is vested with broad inherent authority to manage its cases, which carries with it the discretion and authority to rule on motions in limine prior to trial." Ridolfi v. State Farm Mutual Auto. Ins. Co. , 2017 WL 3198006, *2 (M.D. Pa. July 27, 2017). "Courts may exercise this discretion in order to ensure that juries are not exposed to unfairly prejudicial, confusing or irrelevant evidence." Id.

"A trial court considering a motion in limine may reserve judgment until trial in order to place the motion in the appropriate factual context." United States v. Tartaglione , 228 F.Supp.3d 402, 406 (E.D. Pa. 2017). "Further, a trial court's ruling on a motion in limine is ‘subject to change when the case unfolds, particularly if actual testimony differs from what was contained in the movant's proffer.’ " Id. (quoting Luce v. United States , 469 U.S. 38, 41, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) ).

Jessamy's motion is filed pursuant to, inter alia , Federal Rule of Evidence 609, which governs the admissibility of a witness's prior convictions for impeachment purposes. Pursuant to Rule 609(a), for purposes of attacking the character for truthfulness of a witness, evidence that the witness has been convicted of a felony "shall be admitted, subject to Rule 403 ... if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused." Fed.R.Evid. 609(a)(1). In analyzing conviction evidence, the court must engage in a "genuine balancing" of probative value and prejudicial effect. Tabron v. Grace , 898 F.Supp. 293, 297 (M.D. Pa. 1995). Important considerations include "the nature of the convictions, the time that has elapsed since conviction, the importance of credibility to the underlying claim, and the potential for prejudice from admitting the convictions." Id. at 295.

A conviction over ten years old (measured from the date of conviction or release from confinement for the conviction, whichever is later), is generally not admissible "unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantial outweighs its prejudicial effect." Fed.R.Evid. 609(b). Thus, convictions over ten years old are only to be admitted in exceptional circumstances and the Rule 403 balancing is reversed. Whereas under Rule 403 unfair prejudice must substantially outweigh the evidence's probative value, for convictions over ten years old, the probative value of the conviction must substantially outweigh the prejudicial effect.

Jessamy is presently serving a federal sentence for his conviction under 18 U.S.C. §§ 924(c)(1)(A)(iii) and 924(c)(2), in relation to discharging a firearm in furtherance of a robbery. He was previously convicted of reckless endangerment in 2011, for which he completed his prison sentence in 2018. Both of these convictions arose from the same incident, but the former charge was prosecuted in federal court and the latter was prosecuted in state court. Jessamy's criminal history additionally consists of convictions for obstruction of government administration and assault in the second degree in 2008, and criminal trespass, criminal mischief, and assault in the third degree in 2007.

The government has represented that it does not, at present, intend to introduce evidence of Jessamy's convictions from 2007 and 2008. Accordingly, the court will limit its analysis to only the two most recent convictions. In the event the government later provides notice that it intends to introduce the 2007 and 2008 convictions, the court will revisit the issue of their admissibility at that time.

With respect to his discharging a firearm conviction, Jessamy argues that, because it was based upon a statute that has since been held unconstitutional, it cannot be used for impeachment purposes. Jessamy cites United States v. Davis , ––– U.S. ––––, 139 S.Ct. 2319, 204 L.Ed.2d 757 (2019), wherein the Supreme Court's held in that 18 U.S.C. § 924(c)(3)(B), the residual clause of the Armed Career Criminal Act, was unconstitutionally vague and that conspiracy to commit Hobbs Act robbery was not a crime of violence. Jessamy argues that, because he was convicted under 18 U.S.C. §§ 924(c)(1)(A)(iii) and § 924(c)(2) "in relation to a crime of violence," and because, under Davis , conspiracy to commit Hobbs Act robbery is no longer a "crime of violence," his conviction may be vacated and thus should not be used for purposes of impeachment. Relatedly, he argues that the use of this offense, as well as his reckless endangerment conviction, are inappropriate for purposes of impeachment under Rule 609, since all relevant factors the court must consider weigh against admission.

" Rule 609 permits evidence of a prior felony conviction to be offered to impeach a testifying witness. However, when the testifying witness is also the defendant in a criminal trial, the prior conviction is admitted only ‘if the probative value of the evidence outweighs its prejudicial effect to that defendant.’ " United States v. Caldwell , 760 F.3d 267, 286 (3d Cir. 2014) (quoting Fed.R.Evid. 609(a)(1)(B) ). The Third Circuit has held that this Rule "reflects a heightened balancing test" with a "predisposition toward exclusion" and, that "[a]n exception [to exclusion of the evidence] is made only where the prosecution shows that the evidence makes a tangible contribution to the evaluation of credibility and that the usual high risk of unfair prejudice is not present." Id. (internal quotation marks omitted). "When offering a prior conviction to impeach a testifying defendant, the government bears the burden of satisfying the heightened balancing test set out in Rule 609(a)(1)(B)." Id. at 289.

The Third Circuit has "recognized four factors that should be considered when weighing the probative value against the prejudicial effect under this heightened test." Id. at 286. The four factors are: "(1) the kind of crime involved; (2) when the conviction occurred; (3) the importance of the [defendant's] testimony to the case; [and] (4) the importance of the credibility of the defendant." Id. (internal quotation marks omitted).

Initially, the court rejects Jessamy's argument that evidence of his discharging a firearm conviction should be excluded on the basis that there is a potential for it to be vacated. If "the pendency of an appeal does not preclude the use of a prior conviction for impeachment purposes," then certainly the fact that there is some possibility that an otherwise final conviction may overturned likewise does not constitute a basis to exclude it. United States v. Kermidas , 332 F.Supp. 1312, 1317 (M.D. Pa. 1971) ; see also Fed.R.Evid.609(e) ("A conviction that satisfies this rule is admissible even if an appeal is pending."). In the event that this conviction is vacated prior to trial, Jessamy is certainly entitled to renew his objection.

With regard to whether Jessamy's convictions meet the Bedford factors, the court will address each in turn. As to the first factor, the kind of crime, "courts consider both the impeachment value of the prior conviction as well as its similarity to the charged crime." Caldwell , 760 F.3d at 286. "The impeachment value relates to how probative the prior conviction is to the witness's character for truthfulness." Id. "With respect to the similarity of the crime to the offense...