United States v. White

312 F. Supp. 3d 355
District Court, E.D. New York·Decided May 9, 2018·No. 17–CR–333 (WFK)·Published·Cited by 6 cases

Opinion

WILLIAM F. KUNTZ, II, United States District Judge:

The Government moves in limine for an order permitting it to impeach the defendant, Mr. David White ("Defendant"), with certain of his prior felony convictions pursuant to Federal Rule of Evidence 609 if he chooses to testify during trial. ECF No. 50 ("Gov't Rule 609 Mot."). For the reasons discussed below, the Government's motion is GRANTED in part and DENIED in part.1

BACKGROUND

On June 23, 2017, Defendant was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 3551 et seq. ECF No. 8. On September 15, 2017, Defendant filed a motion seeking to suppress a firearm, ammunition, and all other tangible evidence obtained as a result of a car search that occurred in the early morning hours on May 31, 2017. ECF No. 18 at 1-2. After holding a suppression hearing and considering the parties' written submissions, this Court denied Defendant's motion *358in a written decision dated February 8, 2018. ECF No. 40.

On April 23, 2018, the Government filed its first motion in limine seeking an order allowing it to impeach Defendant with certain prior felony convictions pursuant to Rule 609(a) should Defendant elect to testify at trial. Gov't Rule 609 Mot. Specifically, the Government intends to impeach Defendant with the statutory name of the offense, date of conviction, and sentence imposed for the following convictions: (1) Defendant's March 23, 2015 conviction for attempted criminal possession of a controlled substance in the third degree with intent to sell, in violation of N.Y. Penal Law § 220.16(1), for which he was sentenced to one year of imprisonment;2 (2) Defendant's February 15, 2008 conviction for criminal possession of a controlled substance in the third degree with intent to sell, in violation of N.Y. Penal Law § 220.16(1), for which he was sentenced to one year of imprisonment; and (3) Defendant's March 21, 2007 conviction for attempted assault in the second degree during the commission of a felony, in violation of N.Y. Penal Law § 120.05(6), for which he was sentenced to one to three years of imprisonment and released to parole on December 4, 2008. Id. at 3. The Government also seeks permission to cross-examine Defendant regarding the underlying facts of his prior criminal convictions if he "opens the door" and testifies in a manner that contradicts the facts of those prior convictions. Id. at 6.

On April 30, 2018, defense counsel filed a response in opposition to the Government's motion. Def. Resp., ECF No. 56. In his response, defense counsel states "Mr. White does not intend to testify in this case." Id. at 1 n.1. Nonetheless, in the event Defendant does testify at trial-and for the purpose of allowing both parties to prepare their respective cases with full knowledge of this Court's evidentiary rulings-this Court provides its rulings and explanations on the Government's first motion in limine below.

DISCUSSION

I. Federal Rule of Evidence 609

Federal Rule of Evidence 609 controls the impeachment of a witness by evidence of a criminal conviction. In relevant part, it provides: "for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence ... 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." Fed R. Evid. 609(a)(1).3 Pursuant to Rule 609(b), there is a ten-year limitation that "applies if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later." If more than ten years have passed, "[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 *359gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use." Fed. R. Evid. 609(b).

In determining whether "the probative value of [a prior conviction punishable by death or more than one year of imprisonment] outweighs its prejudicial effect to [the] defendant" under Rule 609(a)(1)(B), district courts are guided by several factors, including: (1) the impeachment value of the prior crime; (2) the date of the conviction and the witness's subsequent history (the more recent, the more probative); (3) the similarity between the past crime and the charged crime (the more similar, the greater likelihood of prejudice); (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue. United States v. Hayes , 553 F.2d 824, 828 (2d Cir. 1977) (citations omitted); United States v. Thomas , 214 F.Supp.3d 187, 195 (E.D.N.Y. 2016) (Kuntz, J.) (citations omitted); United States v. Brown , 606 F.Supp.2d 306, 311-12 (E.D.N.Y. 2009) (Matsumoto, J.) (citations omitted).

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United States v. White, 312 F. Supp. 3d 355 (E.D.N.Y. 2018).

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