U.S. Courts of Appeals
Ninth Ciruit holds specific conduct underlying prior conviction not admissable under either FRE 608 or 609
Posted by: Gerald Smith
June 17, 2009
In a recent opinion, United States v. Osazuwa, ___ F.3d ___, 2009 WL 1232107 (9th Cir. May 7, 2009), the Ninth Circuit addressed the "complex interplay" between Rules 608 and 609 of the Federal Rules of Evidence. In pertinent part, Rule 608(b) provides that specific instances of conduct "for the purpose of attacking or supporting a witness' character for truthfulness, other than conviction of a crime as provided in Rule 609, may not be proved by extrinsic evidence." The rule goes on to provide such instances, if probative of truthfulness or untruthfulness, may be inquired into on cross examination.
Rule 609 provides that evidence "that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness."
The defendant in Osazuwa was tried and convicted for assaulting a federal prison guard while incarcerated for failing to pay restitution ordered in his prior conviction for bank fraud. The only eyewitnesses were the defendant and the guard. On cross examination, the government questioned the defendant at some length about lies he told as part of the conduct resulting in his fraud conviction. After argument from counsel, the District Court had allowed the testimony, finding the defendant had "opened the door" by minimizing his conduct in the fraud case. The minimization consisted of his testimony that he had served only one day for the fraud, which was true. The District Court also held the evidence was admissible under Rule 608.
The Ninth Circuit reversed and remanded for a new trial. The Court agreed with the defendant that Rule 608 applies only to specific instances of conduct that were not the basis for a conviction. The Court began the analysis by agreeing with United States v. Cudlitz, 72 F.3d 992, 995 (1st Cir. 1996), that the rules governing cross examining a criminal defendant about prior wrongs are "are among the most complex and confusing in the entire law of evidence."
The Court noted that several circuits have previously adopted the defendant's argument. Concluding that the rule is ambiguous the Court considered legislative history. Also instrumental in its decision was the inconsistency inherent in barring inquiry into details of a conviction pursuant to Rule 609 but allowing such details to be admitted through the "back door" under Rule 608. The Court cited extensive case law supporting the principle that Rule 609 permits only the number of convictions, nature of the crimes, and dates of the convictions. Rule 609 does not permit inquiry into specific conduct and details of the conviction.
The Court further determined that the defendant had not opened the door by testifying truthfully that he had been sentenced to incarceration for one day for his prior conviction. The defendant did not testify about the underlying facts or create a false impression. He answered the question truthfully. The Court suggested that the government, if it was concerned the testimony might have minimized the offense, could have asked further questions about the sentence itself, such as the amount of restitution ordered.
The case will have significant impact on development of defense trial strategies. A major concern that always arises is subjecting a testifying defendant to 608/609 impeachment. At least in the Ninth Circuit, this opinion provides some relief by limiting 608 impeachment and curtailing the limits of the "opening the door" threat.
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Ninth Circuit says the mail must go through, but not early or even on time
Posted by: Gerald Smith
June 17, 2009
In United States v. Jefferson, -- F.3d --, 2009 WL 1444555 (9th Cir. No. 08-30067, May 26, 2009), the Ninth Circuit recently held that a defendant did not have a Fourth Amendment possessory interest in a package that has a guaranteed delivery time until such time has passed.
John Jefferson appealed the denial of his suppression motion. An expressed package addressed to him arrived at the post office for delivery on the morning of April 6, 2006. The package had been mailed on April 5 with delivery guaranteed by 3:00 p.m. on April 7. The postal inspector had previously instructed clerks to notify him of any packages addressed to Jefferson. Upon being notified, the inspector told the clerk to hold the package overnight.
The inspector arrived at the post office at 7:00 a.m. on April 7 and inspected the package. He then submitted it to a canine sniff. The dog alerted to narcotics. Law enforcement applied for a warrant, which was issued at 11:55 a.m. The package was opened and found to contain 253 grams of methamphetamine. At 1:30 p.m., a beeper warrant was issued to place a beeper in the package. A controlled delivery of the package was made at about 5:00 p.m., and Jefferson was arrested when the beeper went off.
Citing United States v. Hernandez, 313 F.3d 1206 (9th Cir. 2002), the Court noted that a person has both a privacy and possessory interest in a mailed package. The Court concluded, however, that Jefferson's privacy interests were not implicated by the visual inspection because what is knowingly exposed to the public is not protected by the Fourth Amendment. Similarly, according to the Court, the use of a well-trained narcotics-detection dog does not implicate legitimate privacy interests.
Thus, only Jefferson's possessory interests were at issue. Jefferson asserted that this interest arose on April 6 when the package arrived at the post office and was removed from the mail stream rather being delivered in the normal fashion with other express mail packages. The Court disagreed, relying in large part on United States v. LaFrance, 879 F.2d 1 (1st Cir. 1989).
LaFrance was a case with remarkably similar facts. The First Circuit found in that case that the question of when a possessory interest arises would be determined by general contract principles. The Ninth Circuit quoted LaFrance: "'[W]here a delivery time is agreed upon, a court should not intrude to imply a (different) reasonable time for delivery.' LaFrance, 879 F.2d at 7."
As in LaFrance, the actual delivery time to Jefferson was in fact after the agreed upon time. LaFrance concluded that once the delivery time had passed, further detention of the package was reasonable under the circumstances. The Ninth Circuit agreed, holding that before a guaranteed delivery time, law enforcement may detain a package for inspection with no Fourth Amendment curtailment. Once that time has passed, law enforcement must have a "reasonable and articulable suspicion." Here, by the guaranteed delivery time, law enforcement not only had such suspicion, but had already established probable cause.
The Court also rejected Jefferson's double jeopardy claim based on the jury's inability to reach a verdict at his first trial.
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