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United States v. Jett

United States District Court, S.D. Indiana, Indianapolis Division

January 30, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DUPRECE JETT (01), DAMION MCKISSICK (02), EARL WALKER (03), Defendants.

          ORDER ON GOVERNMENT'S MOTION IN LIMINE (Filing No. 76)

          TANYA WALTON PRATT, JUDGE

         Order 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.

         I. LEGAL STANDARD

         The 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.

         Federal 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. 609(a)(1)(B). But:

[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).

         II. DISCUSSION

         The 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).

         In its 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.[1] (Filing No. 103.)

         On June 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 2.)

         The 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.)

         Neither 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.

         The 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 ...


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