Impeachment by Evidence of a Criminal Conviction

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Petitioner Luce was indicted on charges of conspiracy and possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 846 and 841(a)(1). During his trial in the United States District Court for the Western District of Tennessee, Luce moved for a ruling to preclude the Government from using a 1974 state conviction to impeach him if he testified. There was no commitment by Luce that he would testify if the motion were granted, nor did he make a proffer to the court as to what his testimony would be. In opposing the motion, the Government represented that the conviction was for a serious crime—possession of a controlled substance. The District Court ruled that the prior conviction fell within the category of permissible impeachment evidence under Federal Rule of Evidence 609(a). The District Court noted, however, that the nature and scope of Luce's trial testimony could affect the court's specific evidentiary rulings; for example, the court was prepared to hold that the prior conviction would be excluded if Luce limited his testimony to explaining his attempt to flee from the arresting officers, but if he took the stand and denied any prior involvement with drugs, he could then be impeached by the 1974 conviction. Luce did not testify, and the jury returned guilty verdicts. The United States Court of Appeals for the Sixth Circuit affirmed. The Court of Appeals refused to consider Luce's contention that the District Court abused its discretion in denying the motion in limine without making an explicit finding that the probative value of the prior conviction outweighed its prejudicial effect. The Court of Appeals held that when the defendant does not testify, the court will not review the District Court's in limine ruling. Some other Circuits have permitted review in similar situations. The Supreme Court granted certiorari to resolve the conflict.

On July 31, 2003, Eric Besore contacted DEA task force officer Steven Thibodeau to arrange a controlled purchase of drugs from an individual nicknamed Hoot. Besore had previously agreed to assist Thibodeau with drug investigations in exchange for help dismissing a criminal speeding charge. Thibodeau and other agents gave Besore $1,000, equipped him with an electronic transmitting device resembling a pager, searched him and his vehicle, and sent a surveillance team including Thibodeau and Barry Kelly to monitor the transaction in Westbrook, Maine. Besore drove to a parking lot at King and Brown Streets. Kelly parked nearby to record transmissions from the device while Thibodeau maintained contact by cell phone. After a uniformed officer stopped a nearby vehicle, Besore moved his car up the street. Thibodeau later observed Besore in the driver's seat of his car with a black male later identified as Dwayne J. Anderson in the passenger seat. Kelly saw Anderson exit Besore's car and enter a green Subaru parked behind it. Besore then drove away and met Thibodeau, handing him a plastic bag containing a substance that field-tested positive for cocaine base. Thibodeau placed the substance in evidence envelope 159263, locked it in the DEA safe, and mailed it to the DEA laboratory in New York. Chemist Brian O'Rourke later confirmed the substance was cocaine base weighing 6.1 grams. On October 23, 2003, a grand jury indicted Anderson for knowingly and intentionally distributing five or more grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). A two-day jury trial began on April 7, 2004, in the District of Maine. At trial the government introduced a copy of the recording from Besore's transmitting device along with a transcript prepared by the prosecutor. Kelly authenticated the transcript by comparing it to the tape. The court gave limiting instructions that the tape was the evidence and any discrepancies must be resolved in favor of the tape. Besore did not appear despite a government subpoena. The defense requested a missing witness instruction, which the court denied. The court also excluded evidence of Besore's prior felony conviction for tampering with a witness during cross-examination of Thibodeau and admitted the drugs over a chain-of-custody objection. The jury convicted Anderson after nearly two hours of deliberation. The PSR calculated a base offense level of 26 based on 6.1 grams of crack cocaine. It classified Anderson as a career offender, though the government later conceded he lacked the required predicate offenses and should be placed in criminal history category III. At sentencing on April 27, 2005, the district court found the substance was crack cocaine, set the Guidelines range at 78 to 97 months, and imposed a sentence of 78 months' imprisonment, five years of supervised release, and a $100 assessment. Anderson timely appealed both conviction and sentence.

Respondent John Abel and two cohorts were indicted for robbing a savings and loan in Bellflower, Cal., in violation of 18 U. S. C. §§ 2113(a) and (d). The cohorts elected to plead guilty, but respondent went to trial. One of the cohorts, Kurt Ehle, agreed to testify against respondent and identify him as a participant in the robbery. Respondent informed the District Court at a pretrial conference that he would seek to counter Ehle’s testimony with that of Robert Mills. Mills was not a participant in the robbery but was friendly with respondent and with Ehle, and had spent time with both in prison. Mills planned to testify that after the robbery Ehle had admitted to Mills that Ehle intended to implicate respondent falsely to receive favorable treatment from the Government. The prosecutor in turn disclosed that he intended to discredit Mills’ testimony by calling Ehle back to the stand and eliciting from Ehle the fact that respondent, Mills, and Ehle were all members of the “Aryan Brotherhood,” a secret prison gang that required its members always to deny the existence of the organization and to commit perjury, theft, and murder on each member’s behalf. Defense counsel objected to Ehle’s proffered rebuttal testimony as too prejudicial to respondent. After a lengthy discussion in chambers the District Court decided to permit the prosecutor to cross-examine Mills about the gang, and if Mills denied knowledge of the gang, to introduce Ehle’s rebuttal testimony concerning the tenets of the gang and Mills’ and respondent’s membership in it. At trial Ehle implicated respondent as a participant in the robbery. Mills, called by respondent, testified that Ehle told him in prison that Ehle planned to implicate respondent falsely. When the prosecutor sought to cross-examine Mills concerning membership in the prison gang, the District Court conferred again with counsel outside of the jury’s presence, and ordered the prosecutor not to use the term “Aryan Brotherhood” because it was unduly prejudicial. Accordingly, the prosecutor asked Mills if he and respondent were members of a “secret type of prison organization” which had a creed requiring members to deny its existence and lie for each other. When Mills denied knowledge of such an organization the prosecutor recalled Ehle. Ehle testified that respondent, Mills, and he were indeed members of a secret prison organization whose tenets required its members to deny its existence and “lie, cheat, steal [and] kill” to protect each other. Ehle then further described the organization and testified that “in view of the fact of how close Abel and Mills were” it would have been “suicide” for Ehle to have told Mills what Mills attributed to him. Respondent’s counsel did not request a limiting instruction and none was given. The jury convicted respondent. On his appeal a divided panel of the Court of Appeals reversed. 707 F. 2d 1013 (1983).

On the afternoon of September 14, 2006, Minneapolis police responded to a 911 call of a shooting in South Minneapolis and found Bennie Hodges lying wounded with blood on his pants near the buttocks area. Hodges told the responding officer that he had been shot by appellant, whose nickname is "Little Cuz." Hodges was taken to the hospital, where police spoke to his mother, who had been with him and described the shooter as an African-American male roughly 25 years old with short braids to his neck but could not make a positive identification from a photographic lineup. The next day Hodges identified appellant in a photographic lineup as the shooter, and Hodges' mother independently identified appellant as the shooter in a separate photographic lineup. A next-door neighbor who saw the shooting described the shooter as an African-American male roughly 25-30 years old with braids, wearing a light-colored shirt and dark blue jeans, a description that matched appellant. Appellant was charged with first-degree assault, two counts of attempted first-degree aggravated robbery, second-degree assault, and felon in possession of a firearm; a second amended complaint added a charge of attempted first-degree murder. At trial the State presented testimony from Hodges, Hodges' mother, the next-door neighbor, and a friend of appellant who testified that she picked him up from a Subway restaurant that afternoon. The district court denied appellant's motion to suppress the photographic lineup identifications and granted the State's request to impeach appellant with two prior drug-related felonies if he testified. Appellant chose not to testify. The jury found appellant guilty of first-degree assault, second-degree assault, and felon in possession of a firearm, but the district court declared a mistrial on the attempted first-degree murder charge because the jury could not reach a unanimous verdict. In March 2007 the district court first sentenced appellant to 60 months for the felon-in-possession conviction, which increased his criminal-history score from three to four and raised the presumptive sentence range for the first-degree assault conviction. The court then imposed the maximum presumptive sentence of 160 months for first-degree assault, to be served concurrently with the firearm sentence. The court of appeals affirmed, and the Minnesota Supreme Court granted review.