United States v. Myles

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 96-60583 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOHNNY N. MYLES,

Defendant-Appellant.

Appeal from the United States District Court For the Southern District of Mississippi (95-CR-99-1) March 19, 1997

Before WISDOM, KING, and SMITH, Circuit Judges.

PER CURIAM:*

Johnny Myles was convicted by a jury on counts two and four of

an indictment charging him with possession with intent to

distribute cocaine. At trial, the district court overruled Myles’s

motion in limine requesting exclusion of evidence of a previous

conviction for conspiracy to sell cocaine and permitted the

government to cross-examine Myles regarding the prior conviction.

Myles asserts that the district court erred in admitting this

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. evidence because it is more prejudicial than probative under

Federal Rule of Evidence 609.

A district court must make an on-the-record finding that the

probative value of a prior conviction outweighs its prejudicial

effect before admitting the conviction under Rule 609(a)(1). United

States v. Preston, 608 F.2d 626, 639 (5th Cir.), cert. denied, 446

U.S. 940 (1980). Such on the record findings are mandatory.

United States v. Acosta, 763 F.2d 671, 695 (5th Cir.), cert.

denied, 474 U.S. 863 (1985). As the district court did not fulfill

this requirement, the case must be remanded.

As we noted in Preston, however, the failure of the district

court to make specific findings does not require reversal of

Myles’s conviction. Rather, we remand the case for an appropriate

determination under Rule 609, to be conducted on the record. If

the court finds that the probative value of the prior conviction

outweighed its prejudicial effect, the conviction will stand

subject to Myles’s right to raise on appeal whether the district

court abused its discretion in admitting the evidence. If,

however, the court finds that the prejudicial effect of the prior

conviction outweighs its probative value, the court must examine

whether there is any reasonable possibility that the admission of

the conviction affected the outcome of the case. Preston, 608 F.2d

at 639-640. If the prior conviction did not affect the outcome of

the case, the conviction will stand; again, subject to Myles’s

further appeal. If the district court finds that the admission of

the prior conviction affected the outcome of the case, Myles must

be afforded a new trial. REMANDED.