Third Circuit
Case: United States v. Trant, No. 18-3199, 2019 WL 2119634, at *1 (3d Cir. May 15, 2019)
Type of Case: Criminal
Charges/Counts: 18 U.S.C. § 922(g)(1) (felon in possession of a firearm).
Rule(s) of Evidence Cited: FRE 608(b); “bias” impeachment.
Brief Factual Summary: The government charged the defendant with being a felon in possession of a firearm. The primary witness was a man named Ashby, who was also a convicted felon. Ashby testified that he had an encounter with the defendant at a gas station. According to Ashby, after he and the defendant had a brief dispute, he saw what appeared to be a gun under the defendant’s shirt. Ashby testified that this caused him (Ashby) to brandish his own gun. After Ashby did so, the defendant then lifted his shirt to reveal a gun. Ashby called the police.
At trial, defense counsel sought to cross-examine Ashby about his own illegal possession of a firearm. The district court sustained the government’s objections to this line of questioning. On appeal, defense counsel argued that Ashby’s illegal possession was impeachment evidence under either Rule 608(b) or the doctrine of “impeachment by bias.”
Rulings
- FRE 608(b)
The Third Circuit held that the district court did not abuse its discretion in holding that the defendant couldn’t impeach Ashby under Rule 608(b). According to the Court, Ashby’s illegal possession of a gun did not speak to his character for untruthfulness. The Court wrote:
“[T]he District Court did not abuse its discretion by restricting Trant from asking Ashby about his unlawful possession of a firearm. Under this Rule, the District Court had the discretion to allow [the defendant] on cross-examination to question Ashby about specific instances of conduct if they were probative of his character for truthfulness or untruthfulness. See Fed. R. Evid. 608(b); United States v. Williams, 464 F.3d 443, 448 (3d Cir. 2006). The District Court permissibly halted [the defendant’s] proposed questioning because Ashby’s illegal possession of a firearm did not have any bearing on his character for truthfulness or untruthfulness. As the Tenth Circuit has explained, ‘[t]here is a point which constitutes a prosecution of the witness for the offense inquired about rather than a testing of his credibility and when that point is reached the court acts properly in closing down the questioning, for there is no valid interest to be served in shifting the emphasis from the accused person[ ] on trial to the witness.’ Estell, 539 F.2d at 699–700. The Court did not err in preventing [the defendant] from questioning Ashby about his unlawful possession of a firearm and thereby avoiding the concerns expressed in Estell.”
- Bias impeachment
The Third Circuit held that the district court did not plainly err in holding that bias impeachment was not appropriate either. In short, the Court reasoned that there was no evidence of bias. The Court wrote:
“The District Court did not plainly err because if [the defendant] had been permitted to pursue his proposed cross examination, the jury would not have had ‘a significantly different impression’ of Ashby’s credibility. Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986); see also United States v. Chandler, 326 F.3d 210, 219 (3d Cir. 2003). Had the cross examination taken place, no reasonable jury could have believed that Ashby testified against [the defendant] to avoid his own prosecution for illegally having a firearm. And how could they? It was Ashby himself who first called the police and reported to them that he had brandished his own firearm in the presence of [the defendant]. [The defendant’s] proposed cross examination would not have given ‘the jury the facts from which jurors … could appropriately draw inferences relating to the reliability of’ Ashby. Van Arsdall, 475 U.S. at 680 (internal quotation marks and citation omitted).”
Copy of opinion here:
https://cases.justia.com/federal/appellate-courts/ca3/18-3199/18-3199-2019-05-15.pdf?ts=1557939607
Sixth Circuit
Case: United States v. Acosta, No. 18-5207, 2019 WL 2120168, at *1 (6th Cir. May 15, 2019)
Type of Case: Criminal
Charges/Counts: 21 U.S.C. § 841 (possession of methamphetamine with intent to distribute).
Rule(s) of Evidence Cited: FRE 610; FRE 609(a)(1).
Brief Factual Summary: The government charged two defendants—Jessica Acosta and Luis Morales-Montanez—with possessing methamphetamine with the intent to distribute it. The drugs were found by law enforcement in an apartment leased by Acosta. The defense theory was that another man, Brian Barnes, had sublet the apartment from Acosta and was the true source of the drugs. At trial, Barnes and one of the defendants, Morales-Montanez, testified for the defense.
With respect to Barnes, he testified that the drugs did, in fact, belong to him. During cross-examination, the government established that Barnes had been involved in methamphetamine dealing. Although Barnes also had a prior methamphetamine conviction, the government did not impeach him with that conviction under Rule 609(a)(1).
With respect to Morales-Montanez, he testified that the drugs belonged to Barnes. He also testified that a shrine in his home was a shrine of Jesus Malverde, who is worshiped as a “saint” by marijuana dealers. During cross-examination, the government asked Moralez-Montanez about his religious beliefs. The following exchange is illustrative:
“Q. You consider yourself Catholic?
A. I don’t consider myself Catholic, I’m just a Catholic believer.
Q. Catholic believer? Do you understand that there is a Commandment that says thou shall not have any god before me?
A. Yes, I understand.
Q. But yet you prayed to the idol for drug traffickers for protection?
A. I did.”
The jury convicted the defendants.
Rulings
On appeal the Sixth Circuit vacated the criminal convictions based on evidentiary errors, among other things.
- FRE 610
The Sixth Circuit held that the district court erred in allowing the government to cross-examine Morales-Montanez about his religious beliefs. The Court wrote:
“[I]f the prosecutor was attempting to impeach Morales-Montanez’s credibility, he was doing so based on inadmissible considerations. American ‘[c]ourts universally condemn the injection of religion into legal proceedings.’ United States v. Roach, 502 F.3d 425, 436 (6th Cir. 2007) (alteration in original) (internal quotation marks omitted) (quoting Hicks v. Collins, 384 F.3d 204, 223 (6th Cir. 2004)). Here, the prosecutor did more than ‘briefly highlight[ ][Morales Montanez’s] testimony’ with respect to Malverde, as the government argues; he also elicited testimony on Morales-Montanez’s Catholic beliefs and then implied that Morales-Montanez was violating a biblical Commandment. United States Br. at 16. Under Federal Rule of Evidence 610, ‘[e]vidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.’ By the same token, credibility arguments based on religious affiliations or practices are not favored. Cf. United States v. Rogers, 556 F.3d 1130, 1141 (10th Cir. 2009) (citing Rule 610 and assuming without deciding that a closing-argument reference to a government witness’s having worn a cross was improper). We hold that the prosecutor engaged in misconduct through his questions and remarks about the Malverde statue.”
- FRE 609(a)(2)
The Sixth Circuit held that, because the government had not impeached Barnes with his prior methamphetamine conviction under Rule 609(a)(2), it was error for the government to cite to Barnes’s criminal past as a reflection on his credibility. The Court wrote:
“Although Federal Rule of Evidence 609(a)(1) allows an attorney to impeach a witness’s character for truthfulness by introducing evidence that the witness has a conviction for a crimepunishable ‘by imprisonment for more than one year’—such as Barnes’s methamphetamine conviction—the prosecutor did not introduce the conviction as impeachment evidence, and he did not reference the conviction in stating that Barnes was not credible. Thus, the statement simply assumed that Barnes was not credible because of his criminal past without explaining why that past was relevant to truthfulness.”
https://cases.justia.com/federal/appellate-courts/ca6/18-5207/18-5207-2019-05-15.pdf?ts=1557939707
