Before Congress admended Rule 609(a) the balancing provided in Rule 4032 could always be invoked by a defendant's objection to the introduction of a conviction.3 As transmitted by the Chief Justice Rule 609 provided that prior convictions were "admissible," whereas amended Rule 609(a) states such evidence " shall be admitted." Rule 609(a) as enacted provides when admission is mandatory and Rule 403 continues to provide when exclusion is discretionary. Thus, given the intangible nature of the elements of the crimes to be weighed, the nuances inherent in the inverse standards to be applied, the mandatory direction of Rule 609(a)4 and the highly discretionary standard of Rule 403, the two rules (as proposed by the Supreme Court and as enacted) in practical application are essentially functional equivalents. Congress thus ended up requiring the admission of prior convictions by a standard that did not vary materially from the combination of Rules 609 and 403 as transmitted by the Chief Justice. And since the only amendments to the Rule that survived were those made by the Conference Committee the rest of the extensive legislative history is irrelevant. As to Rule 609(a) the Advisory Committee's Notes in most respects are more relevant. See extract therefrom quoted at p. 1051 (supra). The Conference Committee Report as quoted at p. 1077 (infra ) is even stronger.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia Reargued En Banc October 27, 1982.
Robinson, Chief Judge, Wright, Tamm, MacKinnon, Wilkey, Wald, Mikva, Edwards, Ginsburg, Bork, and Scalia, Circuit Judges. Opinion for the Court filed by Circuit Judge Wald, in which Chief Judge Robinson and Circuit Judges Wright, Tamm, Wilkey, Mikva, Edwards, Ginsburg, Bork, and Scalia concur. Opinion concurring specially filed by Circuit Judge MacKinnon.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WALD
A jury convicted Michael Lipscomb of possession of heroin with intent to distribute, and he now appeals. Lipscomb did not testify in his own defense; had he done so, the government would have impeached his credibility with an eight-year-old robbery conviction under Rule 609(a) (1) of the Federal Rules of Evidence. Three other defense witnesses did testify and were impeached by prior felony convictions. In ruling that these prior convictions satisfied Rule 609(a) (1)'s requirement that "the probative value of admitting this evidence outweighs its prejudicial effect to the defendant," the district court had before it only the names of the crimes, their dates, and, for the defendant Lipscomb, his age when the robbery was committed.
Lipscomb contends that without some information on the facts and circumstances underlying a prior conviction, the district court cannot determine whether the conviction is probative of a witness' credibility at all or, if it is probative, whether the probative value of the conviction outweighs its prejudicial effect. The government contends that the district court not only does not need to inquire into the facts and circumstances of a prior conviction in order to balance probativeness against prejudice, but should not be permitted to do so. We hold that (1) all convictions that meet the Rule 609(a) (1) threshold are at least somewhat probative of credibility; (2) the trial court has discretion to decide how much background information, if any, it needs to perform Rule 609(a) (1)'s balance of probativeness against prejudice to the defendant; and (3) the district court did not abuse its discretion in this case. We therefore affirm the conviction. I. BACKGROUND
Lipscomb was tried twice on a charge of possession of heroin with intent to distribute under 21 U.S.C. § 841(a)(1). The first trial ended in a hung jury; the second led to a conviction. *fn1 He was sentenced to two to six years imprisonment. At both trials, the prosecution and the defense offered radically different versions of the events leading to Lipscomb's arrest. Thus, the credibility of the defense witnesses was central to the case.
For the prosecution, Officer Thomas Gallogly testified that on the afternoon of March 6, 1981, while in plainclothes, he observed a blue Buick parked on the corner of Fourth and Ridge Streets, Northwest, District of Columbia, an area known for heavy narcotics traffic. The car was surrounded by several men. Gallogly saw one of the men approach the car and pass money through the window to the driver in return for a small white object, which Gallogly suspected was a bag of heroin. Two more apparent transactions followed, but Gallogly did not see the objects that were exchanged. Gallogly identified the driver as the defendant Lipscomb. *fn2
Lipscomb then drove several blocks, parked again, stepped out of his car, and began talking to someone. Gallogly, who had followed in his own car, got out and approached Lipscomb. Lipscomb turned around, saw Officer Gallogly, and immediately removed an object from his mouth, dropped it on the ground, and stepped on it. At the same time, Officer Gallogly smelled burning marijuana. He identified himself as a police officer and asked Lipscomb for his driver's license, to which Lipscomb replied that he had no license. Gallogly then retrieved the object that Lipscomb had dropped, concluded that it was probably a marijuana cigarette, and arrested Lipscomb for driving without a license and for possession of marijuana. *fn3
Officer Gallogly searched Lipscomb and found 25 white plastic packets, later determined to contain heroin, and $320 in cash. He also found seven packets of heroin on the floor of the Buick. *fn4 Officer Gallogly's partner, Officer Mark Barrows, was not in a position to see the earlier heroin transactions, but confirmed that Gallogly had found heroin in Lipscomb's pockets. *fn5
Lipscomb testified on his own behalf at the first trial but did not testify at the second trial. He stated that he spent most of the afternoon in question at home with his mother and his girlfriend, Rovetta Williams. He had loaned his car to a friend, Daryl Smith, who came by to drop off the car. Lipscomb then drove the car to Smith's mother's house to drop off Smith, dropped off Williams at her house, and returned to Smith's mother's house to pick up Smith and take him home. As Lipscomb got out of the car, Officers Gallogly and Barrows approached and asked for his driver's license. After Lipscomb stated that he had no license, the officers searched him and found cash but no heroin. They also found no heroin inside the car, but did remove a brown paper bag from the trunk; Lipscomb knew nothing about the bag. The cash was for a trip to New York he planned to take with his girlfriend Williams. *fn6 Lipscomb's story was corroborated by his mother, by his girlfriend, by his friend Smith, and by two other friends, Robert Green and Floyd Little, who claimed to be eyewitnesses to the arrest. *fn7
The government impeached Lipscomb's credibility at the first trial with an eight-year-old robbery conviction and would have impeached his credibility at the second trial if he had testified. *fn8 The government also impeached Smith's credibility with a 1980 armed robbery conviction, Green's credibility with a 1976 conviction for accessory after the fact to manslaughter, and Little's credibility with a 1976 robbery conviction. *fn9 The district court gave appropriate limiting instructions, and Lipscomb's attorney properly requested exclusion of the prior convictions, both before trial and in a post-trial motion for a new trial.
B. The District Court's Decision to Admit the Prior Convictions
The district court admitted Lipscomb's eight-year-old robbery conviction into evidence under Rule 609(a) (1) of the Federal Rules of Evidence. Rule 609(a) states:
GENERAL RULE. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted . . . but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.
Rule 609(b) creates an exception to Rule 609(a) for a prior conviction which is remote in time:
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 . . . that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
In ruling that the probativeness of Lipscomb's conviction outweighed its prejudicial effect, the court knew only the name of the offense (robbery), the date of conviction (1973), and Lipscomb's age when the crime was committed (16). *fn10 The court did not know the details of the crime, whether Lipscomb had pled guilty or not guilty, or the sentence imposed; it had inquired but the prosecutor stated that he had no more information. *fn11 The court found that Lipscomb's prior robbery conviction was probative because anyone "desperate enough to rob somebody . . . is desperate enough to lie on the witness stand," *fn12 and because "the Defendant's testimony will be so important to his defense." *fn13 The court did not discuss the extent of prejudice, but did state for the record that "the probative value of admitting this evidence outweighs the prejudicial effect." *fn14
In making this ruling based on limited information, the district court recognized the tension in our cases between, on the one hand, United States v. Crawford, 198 U.S. App. D.C. 312, 613 F.2d 1045, 1050-54 (D.C. Cir. 1979) (Wald, J.), and, on the other hand, United States v. Jackson, 201 U.S. App. D.C. 212, 627 F.2d 1198, 1208-10 (D.C. Cir. 1980) (MacKinnon, J.), and United States v. Lewis, 200 U.S. App. D.C. 76, 626 F.2d 940, 945-51 (D.C. Cir. 1980) (MacKinnon, J.). Crawford suggested that inquiry into the facts and circumstances underlying a prior conviction was desirable and often necessary; Jackson and Lewis suggested that such inquiry was rarely necessary. The district court concluded that "there are two panels on the Court of Appeals and each has a different theory of this, and the most recent panel . . . supports the Government's position [that detailed inquiry is unnecessary] . . . and I will let it in." *fn15
2. Smith, Green, and Little
The district court admitted Smith's armed robbery conviction because, as for Lipscomb's conviction, "the desperate person who would commit an armed robbery would also lie under oath." *fn16 The court did not expressly explain why Little's robbery conviction or Green's accessory after the fact to manslaughter conviction were probative of credibility. The court did, however, state its opinion as to both Little and Green that the "probative value of the convictions outweighs the prejudice to the Defendant." *fn17
3. The Motion for a New Trial
The district court was unsure whether it had adequately supported its decision to admit the prior convictions, and therefore suggested that if Lipscomb were convicted, defense counsel ought to "give me an opportunity to review this further on a motion for new trial." *fn18 Counsel did so, and the government, at the court's insistence, had by that time produced supplemental background material on the prior convictions of Lipscomb, Smith, Green, and Little. The new information showed that Lipscomb; (1) in February 1973, with two others, had robbed a man on the street, threatening him with a B-B gun, and taking $13, his hat, and his coat; (2) in May 1973, pled guilty while maintaining his innocence pursuant to North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970), and was sentenced to three years probation; (3) then spent four months in a halfway house, but was evicted for "disruptive behavior," including smuggling in a gun, and shortly thereafter was arrested for burglary; the burglary charges were dismissed on the government's motion, but Judge Penn revoked Lipscomb's probation and sentenced him to an indeterminate six-year sentence; (4) in 1976, failed to return from an unescorted furlough and was placed on escape status, but soon turned himself in; (5) while at a community care center in the District of Columbia, was arrested and convicted for several burglaries in Virginia and reincarcerated; (6) was finally released when his robbery sentence expired in November 1979. *fn19
Smith had robbed a man at gunpoint and also stolen his car; he was convicted after pleading not guilty. Little and his younger brother had robbed a man at gunpoint, with Little stating "I've got a gun, punk, give me your money"; he was convicted after pleading not guilty. Green had been part of a group who had robbed an 18-year-old boy; another member of the group had stabbed and killed the boy and the group then fled to Green's home. The principal in the stabbing was convicted of first-degree murder. In pleading guilty to accessory after the fact to manslaughter, he "expressed no regret" and explained his plea by stating "all of my witnesses stood up for the government." *fn20
The district court concluded from all this that "there are even stronger reasons than I knew at the time for admitting the convictions," and denied the motion for a new trial. *fn21
4. The Government's Reluctance to Provide Further Information on the Convictions
Under Rule 609(a)(1), the prosecution must show that the probative value of a prior conviction outweighs the prejudice to the defendant. If it cannot do so, the evidence is excluded. See 120 Cong. Rec. 40,891 (1974) (statement of Rep. Hungate, House floor manager for the Rules of Evidence) (the Conference Committee placed "the burden on the proponent of such evidence to show that . . . the probative value of the conviction outweighs its prejudicial effect"); United States v. Smith, 179 U.S. App. D.C. 162, 551 F.2d 348, 359-60 (D.C. Cir. 1976). *fn22 A major subtheme in this case is the prosecution's attempt to minimize its burden of persuasion by insisting that the district court should not look behind the name and date of a conviction to determine how much probative value it has.
The government did not introduce any background information on the prior convictions at the first trial, stating that it had none. Moreover, during the three-week interval between the first and second trials, it made no effort to obtain any background information despite Judge Oberdorfer's request for it at the first trial. At the second trial, Judge Oberdorfer again asked for more information and the government resisted, claiming that the information was "unnecessary":
THE COURT: Have you tried [to get the case jackets in the prior convictions]?
MR. CORNELL: No, I have not.
THE COURT: Well, see if you can.
MR. CORNELL: One of the reasons is we don't view it as necessary. . . .
THE COURT: . . . The Court of Appeals will probably have these, and I don't see any reason why I should have to --
MR. CORNELL: The Court of Appeals will not have the jackets.
THE COURT: Well, they will if [defense counsel] puts them into the record in support of his motion for new trial. See if you can get them; not necessarily today. . . .
MR. CORNELL: I will endeavor to get them. *fn23
Lipscomb, relying on Crawford, contends that without knowing the circumstances of a prior conviction, the district court cannot, in all but exceptional cases, determine if the conviction is probative of credibility at all or how probative it is. Therefore, the prosecution, which has the burden of establishing admissibility, must submit such evidence. Without it, admitting the conviction is an abuse of discretion. *fn24 Lipscomb also argues that the district court should not have considered the post-trial evidence and that this evidence does not in any event justify admitting the convictions. *fn25
The government, relying on Jackson and Lewis, argues that under Rule 609(a) (1), all felony convictions less than ten years old are per se probative on the issue of credibility. It further contends that inquiry into the underlying facts would be burdensome, time-consuming, and generally unhelpful, and therefore should not be permitted. *fn26 Finally, the government argues that even if the district court must inquire into the underlying facts, the court did so after the trial and found ample basis for admitting the convictions. *fn27
This court heard oral argument and then sua sponte set the case for reargument en banc to reconcile the tension between Crawford, Jackson, and Lewis.
Part II of this opinion concludes, based on the language and legislative history of Rule 609, that all felony convictions less than ten years old have at least some probative value on the issue of credibility. Part III concludes that the district court has discretion to determine when to inquire into background facts and when not to. We neither require the court generally to conduct such an inquiry nor discourage it from doing so. Finally, in part IV, we consider the facts of this case and find no abuse of discretion. II. THE PROBATIVENESS OF FELONY CONVICTIONS
In deciding whether the district court must inquire into the facts and circumstances underlying a conviction, a threshold question is whether, under Rule 609(a) (1), all felony convictions less than 10 years old have some probative value on the issue of credibility. The question is one of congressional intent, and we therefore look to the language and legislative history of the Rule for guidance.
We preface our analysis by considering what difference the answer makes. If a prior conviction for some crimes may not be probative of credibility at all, then for those crimes, the district court must inquire into the background facts and circumstances to determine whether a particular conviction has probative value. If, on the other hand, all felony convictions less than ten years old have some probative value on the issue of credibility, then in cases where there is minimal prejudice to the defendant (e.g., impeachment of a witness who has no connection to the defendant), a prior conviction will almost always be admitted, and there is no need for a detailed inquiry into probativeness. Where the prior felony conviction would be prejudicial to the defendant to some degree, however, a threshold conclusion that the conviction is also probative to some degree does not help the district court determine whether, in a particular case, probativeness outweighs prejudice. Nor does it resolve the question of when the court should inquire into the background facts to determine how much probative value a prior conviction has.
Rule 609, on its face, strongly implies that a prior conviction is per se probative of credibility for certain kinds of crimes. The language of the Rule also weakly suggests that all felony convictions less than 10 years old have at least some probative value.
Under Rule 609(a) (2), a prior conviction "shall be admitted" without any balancing of probativeness against prejudice, and regardless of the punishment, if the crime involved "dishonesty or false statement." *fn28 Drawing the line between crimes that involve "dishonesty or false statement" and crimes that do not is not easy, as numerous cases in this *fn29 and other circuits *fn30 attest. It is implausible that Congress believed that crimes falling on one side of the line are so probative of credibility that they should be admitted regardless of prejudice but that crimes falling just on the other side of the line may in some cases not be probative at all. More likely, Congress anticipated that crimes of stealth (e.g., smuggling, burglary), while not quite crimes of "dishonesty or false statement," do reflect lack of credibility and should be admitted unless significantly prejudicial. Indeed, this court, in construing Rule 609(a) (2), has implicitly recognized as much by distinguishing between crimes "that bear directly upon the accused's propensity to testify truthfully" *fn31 and offenses which, while they have "some bearing on an individual's credibility," *fn32 should not be automatically admitted into evidence.
The harder question, on which our prior cases point in different directions, is whether Rule 609(a) (1) incorporates a congressional belief that all felony convictions less than 10 years old are somewhat probative of credibility, even crimes of impulse (e.g., assault, purse-snatching, perhaps shoplifting). In Crawford, the district court ruled that a prior shoplifting conviction was admissible based only on the name and date of the crime. We found this information insufficient; without a factual inquiry, "the district court simply could not determine how probative (if at all) Crawford's shoplifting conviction may have been on her propensity to tell the truth." 613 F.2d at 1052. *fn33 In Jackson, however, we affirmed the district court's decision to admit a prior manslaughter conviction without suggesting that an inquiry into the background facts and circumstances of the crime was necessary. We recognized that manslaughter is "not particularly a veracity-related crime," but relied on the "congressional determination that such a crime, as a felony, may be admissible under Rule 609(a) (1)." 627 F.2d at 1210. *fn34 Similarly, in Lewis, 626 F.2d at 949 n.12, we found that the name and date of a prior narcotics conviction was sufficient basis for the district court's ruling that probativeness outweighed prejudice in a trial on a new narcotics charge. *fn35
The language of Rule 609(a) (1) gives two small clues. Undet the Rule, felony convictions less than 10 years old
shall be admitted if [properly introduced] during cross-examination but only if the crime (1) was [a felony] and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.
(Emphasis added.) The phrasing "shall be admitted . . . but only if," plus the phrase " the probative value," suggests that all prior convictions meet a threshold relevance requirement, but must nevertheless be evaluated for their prejudicial effect to the defendant. This linguistic inference would accord with the pre-Rule 609 understanding that all felony convictions were somewhat probative of credibility. *fn36 It would also be consistent with Congress' understanding that "the prior felony conviction of a prosecution witness may always be used [because] there can be no prejudicial effect to the defendant." *fn37
The inference is hardly compelling, however. Had Congress used the phrasing "shall be admitted . . . only if," one could not infer that all prior convictions are relevant. The use of "but" in "shall be admitted . . . but if" does not, as a matter of strict logic, alter the meaning of the phrase, but does create a slight pause after "shall be admitted." One must assume that this pause has substantive content for any inference of admissibility to arise. Similarly, one must read the phrase "the probative value" as implying ...