Impeachment by contradiction with prior crimes evidence subject to FRE 402, 403 & 607, not 404(b) and 609.

On January 20, 2009, the Third Circuit decided United States v. Gilmore, Case No. 07-3139. It held that a party may permissibly introduce prior crimes evidence, subject to Rules 402, 403 and 607 of the Federal Rules of Evidence, and with a proper limiting instruction, to impeach by contradiction a witness’s testimony regarding a specific fact. See Gilmore, slip op. at 10-11. The Court further held that such impeaching evidence does not fall within the ambit of Rules 404(b) and 609. See id., slip op. at 9, 12.

Gilmore involved a prosecution for conspiracy to distribute and to possess with intent to distribute 500g or more of cocaine. See Gilmore, slip op. at 3. Mr. Gilmore testified in his own defense, and during direct examination, stated “No, I didn’t sell no drugs. I never did.” Id., slip op. at 5 (emphasis by the Court). The government, with the district court’s permission, cross-examined Mr. Gilmore about his two prior convictions for drug distribution, both of which occurred in 1992. See id., slip op. at 6. The district court gave a limiting instruction to the jury after the impeachment and at the final charge. Id., slip op. at 7. As noted above, the Third Circuit affirmed.

Rule 404(b)’s bar on other crimes, wrongs, or acts evidence does not apply, it held, because impeachment by contradiction is not solely “evidence . . . to show action in conformity therewith.” See id., slip op. at 9. Similarly, Rule 609’s rules concerning impeachment of credibility generally with prior convictions do not apply because “impeachment by contradiction concerns the use of evidence to impeach a witness’ specific testimony,” not the “witness’ general character for truthfulness.” Id., slip op. at 12. As Rule 609(b) suggests, however, “a prior conviction’s age may affect its probative value” and “its potential for unfair prejudice.” Id., slip op. at 13. The Third Circuit consequently stated that “a district judge faced with the proffer of past criminal conduct to impeach a witness’ testimony by contradiction my properly consider the age of that conviction using standard Rule 403 analysis, though without resort to Rule 609.” Id.

Bare fact of prior arrests cannot be used to increase a defendant's sentence.

In United States v. Berry, No. 07-1251 (Jan. 6, 2009), Defendants pleaded guilty to robbery and using a firearm in furtherance of crime of violence. At sentencing, the district court speculated that the only reason that defendants' prior arrests had not resulted in prior convictions was because the criminal justice system must have broken down, and the arrests were therefore evidence of prior criminal activity which could support an increase in sentence.

The Third Circuit reversed, holding that the bare fact of prior arrests cannot be used in any way to increase a defendant's sentence and the district court’s reliance on those arrests violated defendants' due process right to be sentenced based on reliable information. While the Guidelines already say that bare arrest records are not to be used to justify an upward departure, Berry makes clear they cannot be used at all (upward variance, denial of downward departure/variance, in weighing the 3553(a) factors, etc).

Sentencing courts may still use prior conduct, including any conduct described in the PSR relating to prior arrests. Here, the PSR contained no such factual information, and the district court simply speculated that the defendant's prior cases were probably dropped for reasons unrelated to guilt/innocence. The Court adds at the end of the decision that “maybe” an extremely long (but still bare) arrest record -- on the magnitude of dozens of arrests -- could be used to increase a sentence; but the court discourages even that.