The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court
MEMORANDUM DECISION AND ORDER
Before the Court is the United States' Motion In Limine (Dkt. 87). The Court has determined that oral argument would not significantly assist the determination of the issue, and will therefore decide the motions without a hearing. As is explained below, the Court finds that the motion should be GRANTED in part and DENIED in part.
Monte Johnson, who has been identified as a potential witness for the Government in this case, has felony convictions for Attempting to Elude a Police Officer, Stalking, and Driving Under the Influence. Mot., Dkt. 87. Johnson was sentenced for the first of these convictions, Attempting to Elude Police Officers, on April 9 2002, more than ten years ago. Id. Rather than a term of confinement, Johnson received a sentence of probation for three years. Id. Johnson's second conviction, for Stalking, occurred in 2001. Johnson received a two year term of confinement, but it was not imposed until January of 2005. Id. The last conviction, for Driving Under the Influence, occurred in 2009. Id.
Johnson will testify regarding financial crimes. Although he was initially indicted for his involvement with the alleged money laundering scheme, he has since pleaded guilty to conspiracy. The Government now seeks to prohibit the use of evidence of his prior convictions to impeach Johnson's credibility at trial.
Federal Rule of Evidence 609 governs the admission of evidence of a prior felony conviction to impeach a witness. The Rule provides that a prior felony conviction of a witness which is less than 10 years old "must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant. . . ." Fed.R.Evid. 609(a)(1) & (b). Rule 403, in turn, provides that a court "may exclude relevant evidence if its probative value is substantially outweighed by.unfair prejudice." Fed.R.Evid. 403. Read together, the rules direct the trial court that it "must" admit a witness's prior felony conviction, unless it finds that the probative value of the convictions are "substantially outweighed" by unfair prejudice. In making this determination, the Ninth Circuit has established five factors that should be considered: "(1) the impeachment value of the prior crime; (2) the point in time of conviction and the witness' subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the [witness]'s testimony; and (5) the centrality of the credibility issue." U.S. v. Jimenez, 214 F.3d 1095, 1098 (9th Cir. 2000) (edited for clarity).
On the other hand, if the felony conviction is more than 10 years old a different analysis is used. When more than 10 years has passed since the individual was convicted of the crime, or released from confinement, then the evidence can be used only if the trial court determines that its probative value "substantially outweighs its prejudicial effect." Fed.R.Evid. 609(b).
Here, the Stalking conviction occurred in 2001, more than 10 years ago. However, he was sentenced to a term of incarceration on that charge in 2005. On the other hand, the DUI conviction occurred in 2009. Accordingly, evidence of those convictions "must" be admitted unless the Court is persuaded that their probative value as impeachment evidence is substantially outweighed by the prejudicial impact of the evidence.
Under the first factor, the impeachment value of the convictions, "prior felony convictions which not in themselves implicate the veracity of a witness . have little impact on credibility." U.S. v. Bagley, 773 F.2d 482, 487 (9th Cir. 1985). Because neither the DUI nor the Stalking convictions impugn Johnson's veracity, neither conviction -- standing alone -- would have a meaningful impact on his credibility.
The second factor considers when the conviction occurred and the witness's subsequent history. As the Ninth Circuit has noted, "a serious felony record could cause a jury to completely disregard [a witness's] testimony and possibly to conclude from it that the government's entire case is suspect." U.S. v. Bemal-Obeso, 989 F.2d 331, 336 (9th Cir. 1993). Additionally, when the prior felony conviction occurred recently there is more likelihood that the witness's testimony is suspect. See U.S. v. Browne, 829 F.2d 760, 763 (9th Cir. 1987). Here, Johnson's criminal history shows that within the last 10 years he has twice committed felony level offenses. This fact is important because he will be testifying to his recent involvement in the alleged financial conspiracy. His familiarity with the criminal system affects his credibility because it shows that he understands the system and knows that he might receive consideration for his testimony.
The third factor -- similarity of crimes -- is intended to keep jurors from "draw[ing] a conclusion that is impermissible in law: because he did it before he must have done it again." Bagley, 772 F.2d at 488. In this case the concern is that evidence of Johnson's convictions would lead one to impermissibly assume that alleged crime also occurred. But Johnson's crimes were for Stalking and DUI, and the alleged crimes involve money laundering, Because of the different nature of ...