United States v. Charles W. Cavender , 578 F.2d 528 ( 1978 )

DONALD RUSSELL, Circuit Judge:

The defendant-appellant was indicted for possession of an unregistered firearm in violation of § 5861(c), (f), (i), 26 U.S.C. After arraignment and the entry of a plea of not guilty, he moved the District Court for an order protecting him from cross-examination at trial with reference to any criminal convictions more than ten years old, pursuant to Rule 609(b), Federal Rules of Evidence. The motion was overruled. He renewed his motion at the conclusion of the Government’s evidence at trial; the District Court again denied it. In this posture of the case, the defendant chose not to testify. Following submission of the cause to the jury, a verdict of guilty was returned. The defendant appeals, claiming error in the denial of his motions to bar his criminal convictions which were more than ten years old.

We reverse and remand for a new trial.

Whether the District Court committed error in denying appellant’s motions turns on the proper application of subdivision (b), Rule 609, Federal Rules of Evidence.¹ That subdivision forbids the use of any criminal conviction more than ten years old for purpose of impeaching the credibility of a defendant “unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.”² The Senate Report on this subdivision made it crystalline that the District Court was only to depart from the prohibition against the use for impeachment purposes of convictions more than ten years old “very rarely and only in exceptional circumstances.” It went further and marked out the strict limits within which the District Court must act if it exercises a discretion to permit the use of such convictions for impeachment, i. e., it must determine that the probative value of the conviction, “supported by specific facts and circumstances * * * substantially outweighs its prejudicial impact” (emphasis added).³ It is significant that the Rule prescribes not simply a determination or finding by the District Court but one supported by “specific,” i. e., articulated, facts. And the burden of establishing such “specific facts and circumstances” supportive of the District Court’s determination is imposed on the Government.⁴ Nor is it improper for the defendant, in order to determine his course at trial, to move in advance of trial, as did the appellant, for a ruling by the District Court on the admissibility of any conviction more than ten years old, which the Government might intend to offer for purposes of impeaching the defendant’s credibility.⁵

There were four convictions of the appellant found by the District Court admissible at trial, in the exercise of its discretion under 609(b). The first of these convictions was sodomy and was twenty-five years old; the second, twenty-one years old, was for probation violation; the third, fifteen years old, was for forgery, and the final one, seven years old, involved the interstate transportation of a stolen motor vehicle. In finding such convictions admissible, the District Court made no express finding that the probative value of any of the convictions⁶ “substantially” outweighed their prejudicial impact nor did it state any “specific facts and circumstances” in support of any such finding; it simply denied the motions. And it denied the motions without any information about the convictions beyond their mere identification and without any real argument on the impeachment value of the several crimes held admissible or of the facts involved in the crimes.

Despite the language of the Rule requiring a finding based on “specific facts and circumstances” as a predicate for admitting the three convictions more than ten years old, it is the position of the Government on this appeal that the District Court, in the exercise of its discretionary power under 609(b) is not required to make any express or “specific” findings and that it is perfectly permissible under the Rule for the Court simply to rule as did the District Court here that the motion to exclude is denied.⁷ We do not agree.

The Rule is plain and unambiguous in our opinion. It obligates the District Court, as we read it, to make a finding and that finding must be, not, as in subdivision (a)(1) of the Rule, a mere finding that probative value outweighs its prejudicial effect, but that the probative value of the conviction “substantially” outweighs its prejudicial effect. Moreover, since the power is to be exercised only in the “rare” and “exceptional” case,⁸ the District Court is required under the Rule to support its finding with “specific facts and circumstances.” This requirement of a finding supported by “specific facts and circumstances” is, as we see it, entirely inconsistent with the Government’s argument that such requirement may be satisfied simply by the bare ruling on the part of the District Court that the conviction is admissible. That argument might be made in connection with 609(a), which includes no requirement of supporting reasons for the District Court’s determination but it cannot be advanced under 609(b). The Senate Report which recommended the relevant language of 609(b) stated in explanation of the language of the subdivision unequivocally that the decision to admit a conviction more than ten years old had to “be supported by specific facts and circumstances thus requiring the court to make specific findings on the record as to the particular facts and circumstances it has considered in determining that the probative value of the conviction substantially outweighs its prejudicial impact.” U.S.Code Cong. & Admin.News, 93d Cong., 2d Sess. at p. 7062 (1974).⁹ Accordingly, Congress in giving the District Court a narrow and limited discretion under its formulation of 609(b) to admit a conviction more than ten years old for purposes of impeachment, hedged the exercise of that discretion about by a clearly defined constraint capable of being satisfied only by a specific finding resting on “specific facts and circumstances.” This conclusion follows, also, from the Government’s own admission that the District Court’s decision to admit such conviction is subject to appellate review for abuse.¹⁰ It is axiomatic that in the absence of any findings by the District Court and any articulation of the “specific facts and circumstances” supporting its decision, there can be no meaningful appellate review of that decision.¹¹ As we have suggested in a number of decisions, appellate review in such circumstances would be a “meaningless gesture,” an empty formality, and a “game of blindman’s buff.” Appalachian Power Co. v. Environmental Pro. Agcy. (4th Cir. 1973) 477 F.2d 495, 507, with cases cited, modified on other grounds Union Electric Co. v. Environmental Protection Agency, 427 U.S. 246, 254, 96 S.Ct. 2518, 49 L.Ed.2d 474; see, also, the cases discussed in Davis, Administrative Law Treatise, 1970 supp., § 1612. We conclude that 609(b) requires the District Court, if it concludes to admit thereunder a conviction more than ten years old, to find that the probative value of such conviction “substantially outweighs” its prejudicial impact and to support that finding with an identification of the “specific facts and circumstances” which support its decision.¹²

It may be that no appellate court has given to the Rule the precise construction in this regard which we have. In fact, two recent cases may appear superficially inconsistent with such view. United States v. Mahone,¹³ and United States v. Cohen.¹⁴ In Mahone, the District Court, unlike the District Court here, did, however, hear argument “regarding the nature of the prior conviction” and did make an express finding that the probative value of the conviction outweighed its prejudicial effect “ ‘on the basis of the record now before it.’ ”¹⁵ The Circuit Court concluded that the District Court’s declaration that its finding was based on “the record” represented an implicit indication that the Court had “weighed the prejudicial effect against the probative value of the evidence.” It did proceed, though, to urge prospectively that trial judges make explicit Rule 609 findings on the record. In Cohen, the Court “found that trial court did not abuse its discretion in admitting the prior [state] conviction where it made a thorough and thoughtful analysis of the pertinent factors though it did not explicitly make findings which appellate court suggests should be done pursuant to Rule 609(b).” ¹⁶ The Court did add, however, that “Rule 609(b) may envision a more explicit proceeding with full findings setting forth the quality and nature of any possible prejudice to the defendant,” [544 F.2d 786] and it had earlier stated that, “[t]he Rule requires a finding of specific facts and circumstances that prejudicial effect will be outweighed by probative value.” [544 F.2d at 785]¹⁷

As we have already stated, we are convinced that the Rule did envision “explicit proceeding with full findings” to which Cohen adverted as a basis for the District Court’s exercise of discretion under 609(b). And we think that United States v. Smith, supra, which is the most complete exposition of the Rule to date, points rather clearly in the direction we have taken in our construction of 609(b) and would seemingly find that the positive commands of the Rule were to be observed as written.¹⁸ Similarly, United States v. Townsend (7th Cir. 1977) 555 F.2d 152, 159, suggests the same construction of the Rule. There, the Court, though it was dealing with a trial antedating the effective date of 609(b), found that the District Court had intended to abide with the Rule and that, in his comments to counsel in ruling on the issue, “adequately indicated why he thought ‘the probative value of the conviction[s] supported by specific facts and circumstances substantially outweighs * * * [this] prejudicial effect,’ as required by the new Rule." (Italics added.) Finally, Judge Weinstein in his text on the Rules takes this same view. He states:

“[T]rial judges should make their determination after a hearing on the record * *, at which the pertinent factors are explicitly identified and weighed.” 3 Weinstein & Berger, Rules, at 609-79 (1977 ed.).

Even if it be assumed that the District Court was not obligated under the Rule to make an express finding based on “specific facts and circumstances” as authority for admitting a conviction more than ten years old, it would seem difficult, if not impossible, in any event for a court to find on a bare record such as that here that the probative value of a twenty-five year old sodomy conviction on a party’s credibility “substantially” outweighed its prejudicial impact. Under the Rule, the pivotal issue of the probative value of a conviction turns largely on a consideration of the nature of the conviction itself. This follows because the purpose of impeachment is not “to show that the accused who takes the stand is a ‘bad’ person but rather to show background facts which bear directly on whether jurors ought to believe him * Gordon v. United States (1967) 127 U.S. App.D.C. 343, 347, 383 F.2d 936, 940, cert. denied 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed. 2d 287. Accordingly, in general it is a conviction which bears on “whether jurors ought to believe” the witness or party that' qualifies for impeachment purposes.¹⁹ The crimes which are generally spoken of as meeting this test of giving a basis for an inference of a “propensity to lie” and which “bear directly on whether jurors ought to believe him” are those which “rest on dishonest conduct,” Gordon v. United States, supra, or carry “a tinge of falsification,” United States v. Ortega (9th Cir. 1977) 561 F.2d 803, 806, or involve “ ‘some element of deceit, untruthfulness, or falsification,’ ” United States v. Thompson (9th Cir. 1977) 559 F.2d 552, 554.²⁰ See, also, United States v. Cox (5th Cir. 1976) 536 F.2d 65, 71; United States v. Bastone (7th Cir. 1975) 526 F.2d 971, 982-3, cert. denied 425 U.S. 973, 96 S.Ct. 2172, 48 L.Ed.2d 797; Note, California’s Use of Prior Convictions to Impeach a Criminal Defendant, 9 U. of San Francisco L.Rev. 491, 505 (1975); Krauser, The Use of Prior Convictions as Credibility Evidence: A Proposal for Pennsylvania, 49 Temple L.Q. 291, 302 (1973). The prejudicial effect arising out of the admission of the sodomy conviction against the defendant in this case was obviously substantial and the Government in its brief in this Court so concedes. Without more in this record, we would conclude that the ruling that the conviction of sodomy was permissible under Rule 609(b) was a manifest abuse of discretion and would require a reversal, unless it can be said such error was harmless.²¹

In determining whether the error in ruling that the sodomy conviction was usable in cross-examination of the appellant under 609(b) was harmless, we are left with the same problem faced by the Court in United States v. Smith, supra, 179 U.S.App. D.C. at 180, 551 F.2d at 366, i. e., the standard of harmlessness to be applied. The Government’s case here was purely circumstantial. . The defendant’s connection with such circumstances was the critical issue of the case. Only the appellant was in a position to offer any explanation with reference to those circumstances which might be helpful to the appellant. When the prosecution rests on the effect to be given to a chain of circumstances, a court can never be sure that a defendant’s own testimony and explanation of such circumstances, if given, may not have influenced the jury. We cannot, therefore, say any more than the Court in Smith was able to say, “with fair assurance * * * that the judgment [of the jury] was not substantially swayed by the error” arising from the ruling that the out-of-date convictions was admissible, since, by reason of the District Court’s erroneous ruling, the appellant was denied the opportunity to give his explanation of the incriminating circumstances to the jury. Accordingly, whether we apply the standard of harmless error as articulated in Kotteakos²² or Chapman,²³ it cannot be said that the error in the ruling of the District Court with reference to the sodomy conviction in particular was harmless.

Accordingly, the judgment of the District Court is

REVERSED AND REMANDED FOR A NEW TRIAL.

1 . The legislative history of the Rule is covered in Savikas, New Concepts in Impeachment: Rule 609(a), Federal Rules of Evidence, 57 Chicago Bar Record 76 at 77-8 and United States v. Ortiz (2d Cir. 1977) 553 F.2d 782 at 785-6 (Mansfield, J., dissenting).

2 . The full language of 609(b) is:

“(b) Time limit — Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.”

3 . The language of the Senate Report in connection with the subdivision is as follows:

“It is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances. The rules provide that the decision be supported by specific facts and circumstances thus requiring the court to make specific findings on the record as to the particular facts and circumstances it has considered in determining that the probative value of the conviction substantially outweighs its prejudicial impact. It is expected that, in fairness, the court will give the party against whom the conviction is introduced a full and adequate opportunity to contest its admission.” U.S.Code Cong. & Admin.News, 93d Cong., 2d Sess. 1974, pp. 7051, 7062.

4 . United States v. Hayes (2d Cir. 1977) 553 F.2d 824, 828; United States v. Smith (1976) 179 U.S.App.D.C. 162, 173-74, 551 F.2d 348, 359-60; United States v. Mahone (7th Cir. 1976) 537 F.2d 922, 929, cert. denied 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627; Savikas, supra, at 77.

5 . See United States v. Wolf (10th Cir. 1977) 561 F.2d 1376, 1381; United States v. Jackson (E.D. N.Y.1975) 405 F.Supp. 938, 942; cf. however, United States v. Johnston (8th Cir. 1976) 543 F.2d 55, 59.

In 3 Weinstein-Berger, Evidence Rules, at 609-79 (1977), the authors state:

“Generally the question of which convictions will be usable to attack credibility should be determined prior to trial. Counsel need to know what the ruling will be on this important matter so that they can make appropriate tactical decisions. For example, the opening of defense counsel or the decision of the defendant to take the stand may be affected.”

There is some contrariety in the state decisions on whether such motion should be made before trial or after the prosecution concludes its presentation. For the view that a pretrial motion is proper, see People v. Sandoval (1974) 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413, 415, noted and discussed in 41 Brooklyn L.Rev. at 671-2 (1975). In People v. Delgado (1973) 32 Cal.App.3d 242, 108 Cal.Rptr. 399, 407, commented on in 9 U. of San Francisco L.Rev. at 503^1 (1975), on the other hand, the Court felt the motion should be made at the conclusion of the State’s case.

All authorities seem to agree that, in any event, the motion must be made before the defendant testifies. United States v. Scarpelli-no (8th Cir. 1970) 431 F.2d 475, 480 (Bright, J. concurring).

6 . Under the Rule, each conviction is to be considered separately; nor is the time limit on a conviction enlarged by any subsequent conviction. See, Rothstein, The Proposed Amendments to the Federal Rules of Evidence, 62 Geo.L.Rev. 125, 144-5.

7 . It is inferable that, by simply denying the motion, the District Court could have assumed that the defendant as the proponent of the motion, had the burden. United States v. Ortiz (2d Cir. 1977) 553 F.2d 782, 785 (Mansfield, J., dissenting). Such an assumption would have been erroneous. For purposes of this opinion, however, we will presume that the District Court acted on the basis that the Government had the burden, even though the indications may be to the contrary.

8 . No doubt because of the cautionary language of the Senate Report, Weinstein and Berger describe the District Court’s discretionary balancing power as one to be exercised “in a very limited way.” See, 609-80.4, 3 Weinstein & Berger, Rules (1977 ed.).

9 . The procedural provisions of 609(b) are the converse of those in 609(a)(1). Under 609(a)(1), the felony conviction is admissible unless the District Court finds its prejudicial effect outweighs its probative value, whereas under 609(b) the conviction more than ten years old is inadmissible unless the District Court finds that the probative value of the conviction, “supported by specific facts and circumstances,” “substantially outweighs” its prejudicial effect.

It will be noted that the determination on probative value under 609(b), unlike that under 609(a), is to be “supported by specific facts and circumstances,” and on the basis of such facts the probative value of the conviction must not simply outweigh as in 609(a) but must “substantially outweigh,” its prejudicial impact.

10 . See, United States v. Cohen (5th Cir. 1977) 544 F.2d 781, 785, cert. denied 431 U.S. 914, 97 S.Ct. 2175, 53 L.Ed.2d 224; United States v. Ortiz, supra, 553 F.2d at 784.

11 . Cf. United States v. Mahone, supra, 537 F.2d at 929, the Court said that when “such an explicit finding [of the facts and circumstances supporting the determination to admit] is made, the appellate court easily will be able to determine whether the judge followed the strictures of Rule 609 in reaching his decision." For further discussion of Mahone, see infra.

12 . The concurring opinion finds objectionable this “balancing” process. Balancing, however, is the common tool used in judicial decisions, whether under the common law, in resolving constitutional rights or in ruling, as here, on admissibility of evidence. Whether a confession is to be admitted, (United States v. Lewis (4th Cir. 1975) 528 F.2d 312) identification evidence permitted, (Stanley v. Cox (4th Cir. 1973) 486 F.2d 48) or delay in prosecuting defendant, (Barker v. Wingo (1972) 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101) are all issues resolved by balancing policy or evidential factors. There is nothing unorthodox in the use of such process in this connection.

13 . Supra, 537 F.2d at 929-9.

14 . Supra, 544 F.2d at 785-6.

15 . The concurring opinion would find prejudice to the defendant if the trial court is to inquire into the nature of the crime sought to be introduced for purposes of impeachment. It assumes that all the details of the old crime will be set forth before the jury. The assumption is incorrect. The admissibility of evidence is solely for the court. Accordingly, the evidence of the old crime, if considered, is considered only by the court and not by the jury.

16 . This summary of the Court’s holding is taken from Weinstein & Berger, Commentary on Rules of Evidence for the United States Courts & Magistrates, § 609-80-5, note 2 (1977 ed.).

17 . It is of interest that the Court, in its statement, does not use the Rule’s language which requires that the probative value must “substantially outweigh” the prejudicial effect.

18 . See 179 U.S.App.D.C. at 171, 551 F.2d at 357, note 17:

“Since we are persuaded that the District Court did not operate within the proper framework in evaluating the admissibility of Gartrell’s prior conviction, we need not assess the independent significance of the lack of an explicit finding that probative value outweighs prejudicial effect to the defendant. In particular, we need not decide whether the lack of such a finding inevitably implies a failure to exercise meaningfully the discretion conferred upon the trial court by Rule 609. Likewise we do not reach the question of whether a trial judge must provide an on-the-record explanation of his Rule 609 findings. However, it must be obvious to any careful trial judge that an explicit finding in the terms of the Rule can be of great utility, if indeed not required, on appellate review, see Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974), and some indication of the reasons for the finding can be very helpful.”

19 . See, also, Weinstein & Berger, supra, at 609-57:

“Many crimes, however, while perhaps causing the average man to shun their perpetrator, do not upon analysis support the inference that the person who committed them has a specific proclivity for lying on the witness stand.”

20 . Cf., however, United States v. Ortiz, supra.

21 . For failure by the District Court to state its “specific” reasons for finding them admissible, the probation violation conviction and the forgery conviction of the appellant were, in our opinion, as inadmissible as the sodomy conviction under 609(b). However, if this procedural defect were not present, it might be that the forgery conviction would have probative value on credibility, though we do not have occasion to rule on that point at this stage, but, in any event, whether such probative value would have outweighed “substantially” prejudicial impact should have been carefully considered. Since the record is barren of any details of the probation violation it is difficult, however, to see how the District Court could have justified the ruling as to this conviction. The admission of such conviction, in this state of the record, was as improper as the admission of the sodomy conviction both on procedural and substantive grounds.

22 . Kotteakos v. United States (1946) 328 U.S. 750, 764-5, 66 S.Ct. 1239, 90 L.Ed. 1557.

23 . Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241.