Fed. R. Evid. 609 provides in part: For the purpose of attacking the credibility of a witness, evidence that he (or she) has been convicted of a crime shall be admitted if elicited from him/her or established by public record during cross-examination but only if the crime was punishable by death or imprisonment in excess of one year under the law under which he (or she) was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or involved dishonesty or false statement, regardless of the punishment. Time limit. Evidence of a conviction under this rule is not admissible if a period of more than 10 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, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
Gerald L. Singer and Raymond E. Wagner were found guilty of conspiracy to sell stolen goods (count I) and theft of an interstate shipment(count II). On appeal, they argued that (1) the district court abused its discretion in admitting into evidence on cross-examination a conviction more than 10 years old and (2) the district court erred in denying their motions for judgment of acquittal on the ground of insufficient evidence. Wagner argued that the district court erred in (1) denying his motion to dismiss the indictment, (2) refusing to admit into evidence that his probation would be revoked, (3) denying his motion for mistrial on the ground of prosecutorial misconduct, (4) denying his motion for severance, (5) denying his motion for judgment of acquittal, and (6) denying his requests for disclosure of Brady materials.
Were the convictions proper?
The court agreed that admission of the prior convictions was an abuse of discretion because of their age and questionable probative value, but the held that the error was harmless. The government's evidence was very strong and consisted of a tape-recorded conversation, a videotape, and testimony. The court held that the district court did not err in denying defendants' motions for judgment of acquittal on the ground of insufficiency of the evidence. According to the court, the government succeeded in establishing specific intent in the face of defendants' testimony that they were acting as informants. There was sufficient evidence from which the jury could have found that defendants were not acting as informants and instead knowingly or purposely acted in violation of the law.