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Showing posts from January, 2009

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 occ…

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).