United States District Court, S.D. Indiana, Evansville Division
ENTRY ON MOTION IN LIMINE
RICHARD L. YOUNG, Chief District Judge.
Defendant, Matthew Elder, is charged with conspiracy to distribute methamphetamine. The trial against Defendant is set for March 30, 2015. In preparation for the trial, Defendant moves to exclude evidence of his prior criminal convictions under Federal Rule of Evidence 609. For the reasons set forth below, Defendant's motion is GRANTED in part and DENIED in part.
Defendant seeks to exclude the following three convictions from being used in the Government's case-in-chief and for purposes of impeachment. Defendant was first convicted in 1997 for Possession of Drug Paraphernalia. He was convicted a second time in 1999 for Possession of a Dangerous Drug. Finally, Defendant was convicted in 2007 for maintaining a common nuisance, charged as a felony. The Government has represented that it does not intend to use the convictions in its case in chief, and will use them for the purposes of impeachment, should the Defendant choose to testify.
Federal Rule of Evidence 609 governs impeachment evidence by criminal convictions. In pertinent part, it states that "for a crime that... was punishable by death or imprisonment for more than one year" the criminal conviction must be admitted "if the probative value of the evidence outweighs its prejudicial effect" to the defendant. Fed.R.Evid. 609(a)(1). If, however, "more than ten years have passed since the witness's conviction or release from confinement for it, " then the evidence is "admissible only if its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect." Fed.R.Evid. 609(b).
Defendant argues that such evidence is inadmissible because ten years have elapsed since the conviction or the release of his confinement and/or the probative value of the evidence is outweighed by the prejudicial effect. The Government argues that the ten-year period does not apply to the 1999 conviction, and that the probative value of the 1997 conviction substantially outweighs its prejudicial effect. The court will examine each in turn.
A. 1999 Conviction
In 1999, Matthew Elder was convicted of a felony for Possession of Equipment or Chemicals for the Manufacture of Dangerous Drugs. Defendant violated his probation and was imprisoned for this conviction in 2008 and released in March 2011. Thus, the Government argues, this places the conviction within the ten year period.
The Seventh Circuit has found that the ten-year "clock starts at the witness's release from any physical confinement." United States v. Rogers, 542 F.3d 197, 201 (7th Cir. 2008). Although the Seventh Circuit has not yet ruled on whether the revocation of probation stops the clock, the Fourth and Ninth Circuits have found that it does. See United States v. Gray, 852 F.2d 136, 139 (4th Cir. 1988); see also United States v. McClintock, 748 F.2d 1278, 1288 (9th Cir. 1984). Notably, the Ninth Circuit requires that the charge generating the probation violation must be similar to the charge in the original conviction. See McClintock, 748 F.2d at 1288. Nevertheless, the majority of federal courts do not impose that limitation. See Gray, 852 F.2d at 139. The court will follow the majority.
Next, the Government must show that the probative value of the evidence is outweighed by the prejudicial effect. According to the Government, if Defendant testifies that he had nothing to do with the alleged conspiracy, he will contradict the Government's witnesses. Thus, the credibility of Defendant will be key to who the jury believes. This circumstance is similar to that in the case of United States v. Redditt, 381 F.3d 597, 601 (7th Cir. 2004). In that case, the defendant's testimony completely contradicted the testimony of the Government's witnesses. Id. The district court allowed evidence of his conviction because the defendant's credibility was "a critical factor in the case." Id. On appeal, the Seventh Circuit held that this was not an abuse of discretion. Id.
The court agrees that should Defendant testify and contradict the Government's witnesses, his credibility will be a key issue. Therefore, the 1999 conviction is admissible for purposes of impeachment. The ...