United States v. Norman Meyers

952 F.2d 914, 34 Fed. R. Serv. 1413, 1992 U.S. App. LEXIS 24, 1992 WL 55
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 2, 1992
Docket91-1085
StatusPublished
Cited by81 cases

This text of 952 F.2d 914 (United States v. Norman Meyers) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Norman Meyers, 952 F.2d 914, 34 Fed. R. Serv. 1413, 1992 U.S. App. LEXIS 24, 1992 WL 55 (6th Cir. 1992).

Opinions

[916]*916BOYCE F. MARTIN, JR., Circuit Judge.

A jury convicted Norman Meyers of distribution of cocaine and possession of a firearm by a felon under 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 922(g)(1), respectively. The district court sentenced Meyers to fourteen years in prison, three years of supervised release, and a special assessment of $200.00. On appeal, Meyers argues that the trial court abused its discretion in admitting, for the purposes of impeachment, evidence of a 1984 conviction for armed robbery. Meyers alleges that the Government deprived him of a fair trial by using inflammatory language during its opening and closing statements; that the government failed to follow the procedural requirements of 21 U.S.C. § 851(a)(1) by not filing an information with the court detailing which prior convictions were being relied upon to enhance his sentence; and that the district court abused its discretion in deciding not to grant a downward departure under the Federal Sentencing Guidelines for Meyers’ Section 5K2.12 duress defense. For the following reasons, we affirm.

IMPEACHMENT EVIDENCE

Meyers testified that on three different occasions during April 1990 he sold “crack” cocaine to the same undercover FBI agent. During this time Meyers, who had been convicted of armed robbery in 1984, lent the FBI agent a shotgun, which Meyers had in his possession. Before trial, Meyers stipulated that he had a prior felony conviction. At the same time, Meyers moved to exclude evidence of his prior conviction, arguing that the evidence would be more prejudicial than probative. The district court denied Meyers’ motion.

Meyers argues that the district court erred in admitting the evidence because it was more prejudicial than probative. At the time of Meyers’ trial, Rule 609(a) of the Federal Rules of Evidence provided:

For purposes of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during cross examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the defendant was convicted, and the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the defendant. ...

Fed.R.Evid. 609.1 Rule 609(b) establishes a time limit for impeaching evidence of felony convictions. Felony convictions may only be used to impeach if the conviction or the release from imprisonment under that conviction occurred within the last ten years. Id. The district court determined that Meyers’ 1984 conviction for armed robbery qualified as admissible impeachment evidence under 609(a)(1) and we concur.

In reviewing the district court’s decision to allow the impeaching evidence under Fed.R.Evid. 609(a)(1), we determine whether the district court abused its discretion. United States v. Moore, 917 F.2d 215, 234 (6th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1590, 113 L.Ed.2d 654 (1991). Meyers argues that the district court abused its discretion in failing to properly balance the probative value of the testimony against its prejudicial impact. Specifically, Meyers argues that in balancing the two concerns, the court should have employed the five factors espoused in Gordon v. United States, 383 F.2d 936 (D.C.Cir.1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968). These five factors are (1) the impeachment value of the prior crime, (2) the point in time of the conviction and the witness’ subsequent history, (3) the similarity between the past crime and the charged crime, (4) the importance of the defendant’s testimony, and (5) the centrality of the credibility issue. Id. at 940. In the past, while we have taken notice of the Gordon test, we have held that in order to admit impeaching evidence [917]*917of a prior conviction under Rule 609, a court must make an on-the-record finding based on the facts that the conviction’s probative value substantially outweighs its prejudicial impact. Moore, 917 F.2d at 234 (citing United States v. Mahler, 579 F.2d 730, 734 (2d Cir.1978)).

In this instance, the district court clearly adhered to this directive. After hearing arguments from Meyers and the Government concerning admission of the evidence, the district court specifically stated on the record that the prejudicial impact did not outweigh the probative value. Also, the district court explicitly instructed the jury not to consider the conviction as evidence of Meyers’ character. We find, therefore, that the district court did not abuse its discretion in admitting Meyers’ prior conviction.

INFLAMMATORY LANGUAGE

Meyers has alleged that two statements made by the Government during its opening and closing statements were “plain error,” depriving him of a fair trial. Meyers did not object to the statements during the trial and raises the issue for the first time on appeal.

By failing to object to the allegedly inflammatory remarks during trial, Meyers waived any objection to the remarks on appeal unless the remarks constituted “plain error or [a] defect ... affecting substantial rights.” Fed.R.Crim.P. 52(b). The Supreme Court has defined “plain error” for purposes of Rule 52(b) as error that “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985). Courts of Appeals “may correct only ‘particularly egregious errors.’ ” Id. (quoting United States v. Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)).

In explaining the plain error standard, we have stated that “inappropriate remarks by the prosecutor do not alone justify reversal of a criminal conviction in an otherwise fair proceeding, as long as the jury’s ability to judge the evidence fairly remains intact.” United States v. Castro, 908 F.2d 85, 89 (6th Cir.1990). Prosecutorial misconduct and improper arguments must be “so pronounced and persistent that [they] permeate[ ] the entire atmosphere of the trial.” Id.

During its opening statement the Government stated:

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Bluebook (online)
952 F.2d 914, 34 Fed. R. Serv. 1413, 1992 U.S. App. LEXIS 24, 1992 WL 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-norman-meyers-ca6-1992.