The opinion of the court was delivered by: Matsumoto, United States District Court Judge:
Presently before the court is the government's motion in limine to cross-examine defendant Ray Vasquez ("defendant") regarding certain of his prior convictions and his history of bench warrants in the event that he testifies at trial pursuant to Federal Rules of Evidence 608(b) and 609(a)(1). For the following reasons, the court denies the motion.
The defendant is charged with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), 3551 et. seq. (ECF No. 6, Indictment ¶ 1.) Specifically, the defendant is charged with unlawfully possessing a .22 caliber Erma pistol and ammunition on or about November 24, 2010 after, on a separate and earlier occasion, he had been convicted of a felony. (See id.)
On October 19, 2011, the government filed the instant motion in limine requesting permission to cross-examine defendant Ray Vasquez ("defendant") regarding certain of his prior convictions and his history of bench warrants in the event that he testifies at trial. (ECF No. 24, Motion in Limine by USA ("Mot.").) The government asserts that it "should be permitted to pursue these lines of cross-examination because this information bears on the defendant's credibility." (Mot. at 3.)
First, pursuant to Federal Rule of Evidence 609(a)(1), the government seeks to cross-examine the defendant regarding three separate convictions of Attempted Criminal Sale of a Controlled Substance in the Third Degree in violation of New York Penal Law § 220.39(1), a Class C felony punishable by a term of imprisonment of more than one year. (Mot. at 2.) According to the government, the defendant pleaded guilty to these crimes in Kings County Supreme Court on February 26, 1999, March 5, 2003, and April 25, 2005, and received prison sentences of one year, three-to-six-years, and three years, respectively. (Id.) In his opposition brief, the defendant states that he was sentenced to a prison term of one-to-three years for the 1999 conviction and three years for the 2003 conviction. (ECF No. 35, Defendant's Response to Motion in Limine ("Opp'n") at 1.) With respect to each of these convictions, the government seeks to admit at trial the statutory name of the offense, the date of conviction, and the sentence imposed. (Mot. at 4.)
Second, pursuant to Federal Rule of Evidence 608(b), the government seeks to cross-examine the defendant regarding four bench warrants: (1) a bench warrant issued when he failed to appear in connection with his 1999 conviction described above, on which he was returned on June 29, 2000; (2) a bench warrant issued when defendant failed to appear in connection with his 2003 conviction described above, on which he was returned after a subsequent arrest in April 2005; (3) a bench warrant issued when defendant failed to appear in Kings County Supreme Court for a case in which he had previously pleaded guilty to Criminal Possession of Marijuana in the Fifth Degree, on which he was returned after the subsequent arrest referred to above in April 2005; and (4) a bench warrant issued on September 27, 2010 when defendant failed to appear in Kings County Supreme Court after being arrested for Assault in the Second Degree with Intent to Cause Physical Injury with a Deadly Weapon,*fn1 on which he was returned after his November 24, 2010 arrest in this case. (Mot. at 1-2.) Both of these requests will be discussed in turn.
I.Standard for a Motion in Limine
The purpose of a motion in limine is to allow the trial court to rule on the admissibility and relevance of certain forecasted evidence before the evidence is actually offered at trial. See Luce v. United States, 469 U.S. 38, 40 n.2 (1984); Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996). Courts considering a motion in limine may reserve decision until trial so that the motion is placed in the appropriate factual context. See Nat'l Union Fire Ins. Co. v. L.E. Myers Co. Grp., 937 F. Supp. 276, 286-877 (S.D.N.Y. 1996). Further, the court's ruling regarding a motion in limine is "subject to change when the case unfolds, particularly if the actual testimony differs from what was [expected]." Luce, 469 U.S. at 41.
II.Admissibility of Evidence Pursuant to the Federal Rules of Evidence
The Federal Rules of Evidence govern the admissibility of evidence at trial. Rule 402 requires that evidence be relevant to be admissible. Fed. R. Evid. 402. Relevant evidence is defined as evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. The parties do not address or dispute the relevancy of the defendant's prior convictions and bench warrants.
In addition to the relevancy of the evidence, however, Federal Rule of Evidence 403 provides for a probative-prejudice balancing analysis which permits the exclusion of evidence, even if relevant, "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
Fed. R. Evid. 403. The Second Circuit has stated that the "district court is obviously in the best position to do the balancing mandated by Rule 403, and, accordingly, this Court grants 'broad discretion' to the district court to admit or exclude evidence pursuant to Rule 403." United States v. George, 266 F.3d 52, 63 (2d Cir. 2001) (quoting United States v. Birney, 686 F.2d 102, 106 (2d Cir. 1982)) (internal citation omitted).
III.Admissibility of the Defendant's Prior Felony Convictions under Federal Rule of Evidence 609(a)(1)
Federal Rule of Evidence 609(a)(1) "vests broad discretion in the trial judge to admit, for purposes of impeachment, evidence that the [defendant] has been convicted within ten years of the time of his testimony of a crime punishable by imprisonment in excess of one year . . . if the court determines that 'the probative value of admitting [the conviction] outweighs its prejudicial effect to the defendant.'" United States v. Pedroza, 750 F.2d 187, 202 (2d Cir. 1984) (quoting Fed. R. Evid. 609(a)(1)).
The standard for admissibility of a prior conviction under Rule 609(a)(1) is heightened when the witness is an "accused." See Fed. R. Evid. 609(a)(1). For a witness "other than an accused," the prior conviction is subject to Rule 403 balancing and will be found inadmissible for impeachment purposes if the conviction's "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed. R. Evid. 403 (emphasis added). For an accused like the defendant here, however, the prior conviction "shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused." Fed. R. Evid. 609(a)(1) (emphasis added). According to the Advisory Committee on Evidence Rules, there is a "special balancing test for the criminal defendant who chooses to testify" because "in virtually every case in which prior convictions are used to impeach the testifying defendant, the defendant faces a unique ...