United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON GOVERNMENT'S MOTION IN LIMINE (Filing
WALTON PRATT, JUDGE
This matter is before the Court on the United States of
America's (“the Government”) Motion in
Limine pursuant to Rule 609 of the Federal Rules of
Evidence. (Filing No. 76.) In its Motion, the
Government asks this Court to issue an order in
limine allowing it to use evidence of Defendants
Duprece Jett's (“Jett”) and Damion
McKissick's (“McKissick”) prior convictions
as impeachment evidence at trial, should either Defendant
testify. For the reasons stated below, the Motion is granted
in part and denied in part.
Court excludes evidence on a motion in limine only
if the evidence clearly is not admissible for any purpose.
See Hawthorne Partners v. AT&T Technologies,
Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993). Unless
evidence meets this exacting standard, evidentiary rulings
must be deferred until trial so questions of foundation,
relevancy, and prejudice may be resolved in context.
Id. at 1400-01. Moreover, an order on a motion in
limine does not necessarily mean that all evidence
contemplated by the motion is admissible (or inadmissible);
rather, it only means that, at the pretrial stage, the court
is unable to determine whether the evidence should be
excluded. Id. at 1401.
Rule of Evidence 609 allows the admission of evidence of
prior criminal convictions when used to impeach a witness,
but different standards apply depending on whether the prior
conviction is more or less than ten years old. Rule 609
states that when attacking a witness's truthfulness,
“evidence of a criminal conviction . . . must be
admitted in a criminal case in which the witness is a
defendant, if the probative value of the evidence outweighs
its prejudicial effect to that defendant.” F.R.E.
[I]f more than 10 years have passed since the witness's
conviction or release from confinement for it, whichever is
later [then the] [e]vidence of the conviction is admissible
only if: (1) its probative value, supported by specific facts
and circumstances, substantially outweighs its prejudicial
effect; and (2) the proponent gives an adverse party
reasonable written notice of the intent to use it so that the
party has a fair opportunity to contest its use.
F.R.E. 609(b). So, within the ten-year lookback period, the
conviction's probative value must outweigh the
prejudicial effect. And beyond ten years, the
conviction's probative value must substantially
outweigh the prejudicial effect. A limiting instruction which
tells the jury that the prior convictions may only be used in
determining the credibility of the defendant reduces the
prejudicial effect of admission. United States v.
Redditt, 381 F.3d 597, 601 (7th Cir. 2004).
Government, in its initial Motion in Limine,
asserted that McKissick's and Jett's prior criminal
convictions fell within the ten-year lookback period.
(Filing No. 76.) It did not, however, provide any
argument as to whether the criminal convictions'
probative value outweighed their prejudicial effects.
Accordingly, the Court ordered the Government to supplement
its filing, (Filing No. 82), which it did in an
Amended Motion in Limine Filed Pursuant to Rule 609
of the Federal Rules of Evidence on December 23, 2016
(Filing No. 87).
Amended Motion, the Government argues that Jett's and
McKissick's convictions fall within the ten year period,
and that the convictions' probative value outweigh any
prejudicial effects of their admission. (Filing No.
87.) In response, McKissick argues that at least one of
his convictions, the armed bank robbery, appears to fall
outside of the ten year period, so the Government must prove
that its admission substantially outweighs its
prejudicial impact. (Filing No. 91.) With respect to
the conviction for carrying or use of a firearm in relation
to a crime of violence, which admittedly falls within the ten
year period, McKissick argues the conviction's probative
value does not outweigh the potential prejudice of its
admission. (Filing No. 91.) In reply, the Government
disputes McKissick's contention that the conviction for
bank robbery could be outside of the ten-year
period. (Filing No. 103.)
25, 2005 McKissick pled guilty to Count I: armed bank
robbery, and Count II: carrying or use of a firearm in
relation to a crime of violence. (Filing No. 91 at
2.) On September 27, 2004, he was sentenced to a period
of incarceration of 46 months for the armed bank robbery and
84 months for carrying or use of a firearm in relation to a
crime of violence, to be served consecutively, for a total
sentence of 130 months imprisonment. (Filing No. 91 at
parties agree that, for purposes of determining whether a
conviction falls within the ten-year time period,
“[t]he clock starts at the witness's release from
any physical confinement, ” and “the end date of
the time limit for impeaching convictions is the start of the
trial at which the witness is testifying.” United
States v. Rogers, 542 F.3d 197, 201 (7th Cir. 2008).
McKissick argues that he would have been released from
physical confinement on the bank robbery conviction in
September of 2006 (based on a start date of June 2003 and
credit for “good time”), and “rolled”
to serving his time for carrying or use of a firearm in
relation to a crime of violence. This would place the bank
robbery conviction outside of the ten-year limit set by Rule
609, as his trial is set to begin on February 6, 2017. The
Government responds that McKissick's sentences for the
bank robbery and for carrying or use of a firearm in relation
to a crime of violence should be treated as one combined
sentence, and therefore that McKissick's release date was
actually sometime in 2014. The Government argues that
“[t]o hold otherwise would frustrate the purpose of the
rule, which is to not hold old convictions against defendants
who have walked the straight and narrow for 10 years.”
(Filing No. 103 at 1.)
party has presented case law to support their contentions
regarding whether consecutively running sentences should be
treated as one, for the purposes of Rule 609. Defendant
argues, without an authority, that each conviction is treated
separately under Rule 609. Likewise, the Government provides
no authority to support its position that the sentences
should be combined for the purposes of calculating a
witness's release date.
Government argues in the alternative that even if the bank
robbery sentence was counted separately, that conviction
would still be within the ten-year lookback period. The
Government contends that it would be improper to speculate as
to McKissick's possible “good time” credit,
and that “it would require delving through internal
proprietary BOP procedures, a complicated endeavor that does
not appear contemplated by the rule.” (Filing No.
103 at 2.) Instead, the Government argues, this ...