The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge
Currently before the Court is the Government's Motion in
Limine to Limit Impeachment of Its Witness Nourredine Chtaini
and Defendants' subsequent Opposition. Government witness and
co-conspirator Nourredine Chtaini has three felony convictions
for which he may conceivably be impeached by Defendants upon
cross-examination under Federal Rule of Evidence 609, which
governs "Impeachment by Evidence of Conviction of Crime":
1. Felony theft, a juvenile adjudication in 1991;
2. Felony weapons possession, in 1994, which has been
set aside under the Youth Rehabilitation Act ("YRA");
and
3. Felony theft, a 1995 conviction in Arlington,
Virginia.
Gov't Mot. in Limine at 1, ¶ 1. The Government, in its Motion
In Limine to Limit Impeachment, "agrees that the last
conviction . . . is available for impeachment, but opposes any
impeachment based on the juvenile adjudication or the matter
set-aside under the YRA." Id. at 1, ¶ 2. Moreover, the
Government contends that of the various names used by Mr.
Chtaini, only one such name constitutes an "alias" upon which
impeachment may occur. Id. at 2, ¶ 5. Defendants object to the
Government's motion, and suggest that all three convictions and
all possible names are admissible. Defs.' Opp'n at 1-2. For the
reasons set forth below, the Court shall exclude Mr. Chtaini's 1991 felony theft adjudication from impeachment, shall
allow Defendants to impeach Mr. Chtaini by using his YRA felony
weapons possession conviction, and shall grant Defendants their
requested latitude in questioning Mr. Chtaini as to the possible
nicknames, false names, and aliases that he employed.
A. The Juvenile Adjudication Felony Theft from 1991
Under Federal Rule of Evidence 609(d), "[e]vidence of juvenile
adjudications is generally not admissible under this rule."
Fed.R. Evid. 609(d). However, "[t]he court may . . . in a criminal
case allow evidence of a juvenile adjudication of a witness
other than the accused if conviction of the offense would be
admissible to attack the credibility of an adult and the court is
satisfied that admission in evidence is necessary for a fair
determination of the issue of guilt or innocence." Id.
(emphasis added).
Here, Mr. Chtaini is not the accused. As such, Rule 609(d) does
not necessarily exclude his 1991 juvenile adjudication for felony
theft. However, Defendants still must show that the 1991 offense
would be admissible to attack the credibility of an adult, and
that such an admission is necessary for a fair determination of
guilt or innocence. See Fed.R. Evid. 609(d). As in the case of
an adult, Rule 609(b) excludes convictions which are more than 10
years old "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." Fed.R. Evid. 609(b). Realizing this general
prohibition on the introduction of stale convictions, Defendants
argue that this conviction should nevertheless be admitted
because "[t]he juvenile conviction from 1991 involves a crime of
dishonesty and is probative of the witnesses [sic] credibility." Defs.' Opp'n at 1, ¶ 3.*fn1 Moreover, Defendants suggest
that this conviction "represents one of the few convictions for
this individual despite an overwhelming amount of admitted
criminal activity." Id. According to Defendants, unless this
conviction is available for impeachment, "the criminal history of
Mr. Chtaini is otherwise misleadingly insignificant." Id.
The Advisory Committee Notes to Rule 609(b) stress that "[i]t
is intended that convictions over 10 years old will be admitted
very rarely and only in exceptional circumstances." Fed.R. Evid.
609(b) advisory committee's note (1974); see also United States
v. Lewis, 626 F.2d 940, 950 (D.C. Cir. 1980). "Congress intended
that trial courts be extremely cautious in admitting evidence of
remote convictions." United States v. Bibbs, 564 F.2d 1165,
1170 (5th Cir. 1977), cert. denied, 435 U.S. 1007,
98 S.Ct. 1877, 56 L.Ed.2d 388 (1978). The general rule is one of
inadmissibility. United States v. Cathey, 591 F.2d 268, 275
(5th Cir. 1979). Courts should "take into account the need for
using a prior conviction as an essential element of the probative
value prejudicial effect balancing test mandated by Rule 609(b)."
Id.
In this case, two important factors counsel against the use of
the 1991 conviction for impeachment purposes. First, a conviction
for theft does not necessarily equate to dishonesty or false
statement. See United States v. Crawford, 613 F.2d 1045, 1049
(D.C. Cir. 1979); United States v. Fearwell, 595 F.2d 771, 776
(D.C. Cir. 1979). For theft to equate to a conviction involving
dishonesty which is more probative than a simple conviction
the act for which Mr. Chtaini was convicted must have involved
"communicative or expressive dishonesty." Walker v. Horn,
385 F.3d 321, 334 (3d Cir. 2004). Here, it is not at all clear that
Mr. Chtaini's 1991 conviction involved "communicative or expressive dishonesty," and
therefore it is not certain that it is especially probative.
Second, and more importantly, the importance of the conviction as
a form of impeachment is minimal to Defendants. Mr. Chtaini may
already be impeached based on two prior convictions*fn2 and
another offense from 2003 for which Mr. Chtaini currently awaits
sentencing. One of these offenses, the 1995 felony theft
conviction from Arlington, Virginia, is admissible under Rule
609(a)(1) and brings with it the very same impeachment value as
the 1991 conviction. Moreover, Mr. Chtaini has admitted to
numerous other uncharged "prior bad acts" for which he may be
impeached. Accordingly, the Court finds that (1) given the
presumption against juvenile adjudications for use as impeachment
under Rule 609(d); (2) the age of the 1991 conviction; (3) the
fact that the conviction is not especially probative of
dishonesty; (4) the existence of another, virtually identical
conviction that is available for impeachment; and (5) the high
degree of prejudice that would result from the use of a stale
conviction, the Government's Motion in Limine shall be granted on
this point and Defendants may not introduce Mr. Chtaini's 1991
conviction for impeachment purposes.
B. The YRA Felony Weapons Possession Offense from 1994
Under Federal Rule of Evidence 609(c)(1), evidence of a
conviction is not admissible if "the conviction has been the
subject of a pardon, annulment, certificate of rehabilitation or
other equivalent procedure based on a finding of the
rehabilitation of the person convicted, and that person has not
been convicted of a subsequent crime which was punishable by
death or imprisonment in excess of one year." Fed.R. Evid.
609(c)(1) (emphasis added). While Mr. Chtaini's felony weapons
possession charge was set aside due to rehabilitation, Rule
609(c)(1) does not prevent the use of the conviction for impeachment, as it
would in some circumstances, see, e.g., United States v. Pagan,
721 F.2d 24, 28 (2d Cir. 1983); United States v. Wallulatum,
600 F.2d 1261, 1262-63 (9th Cir. 1979); Charles Alan Wright &
Victor James Gold, 28 Federal Practice & Procedure § 6137 (2005),
because Mr. Chtaini was convicted in 1995 of another felony theft
charge a subsequent crime punishable by imprisonment in excess
of one year.
As such, the Government may only rely on Federal Rule of
Evidence 609(b) in its effort to exclude Mr. Chtaini's felony
weapons conviction from impeachment. Rule 609(b) provides:
"Evidence of a conviction under this rule is not admissible if a
period of more than ten years has elapsed since the date of the
conviction or the release of the witness from 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."
Fed.R. Evid. 609(b) (emphasis added). Two important dates must
be considered: (1) for the purposes of determining whether a
conviction is more than ten years old, the question is whether
ten years has expired at the time the witness testifies at trial,
see Trindle v. Sonat Marine, Inc., 697 F. Supp. 879, 881
(E.D.Pa. 1988) (collecting cases); and (2) under the rule,
"release of the witness from confinement" means at the end of
imprisonment, not the termination of a period of probation, see
United States v. Daniel, 957 F.2d 162, 168 (5th Cir. 1992).
Here, records indicate that Mr. Chtaini's sentencing date for
his felony weapons conviction was May 24, 1995. Mr. Chtaini was
given probation, which ended early on October 2, 1995, due to his
completion of the conditions of his sentence prior to the
expiration of the maximum period imposed by the court. Therefore,
the pertinent date for Rule 609(b) purposes is the date of his conviction May 24, 1995 because he was never
"confined." However, less than 10 full years have passed since
May 24, 1995 and the date of Mr. Chtaini's testimony in this
case. Therefore, the protections of Rule 609(b) are wholly
inapplicable, and the Defendants may impeach Mr. Chtaini
concerning this conviction based upon Federal Rule of Evidence
609(a)(1) because the conviction is less than 10 years old. The
Government's Motion in Limine on this point must therefore be
denied.
C. Mr. Chtaini's Alleged Aliases
Finally, the Government, in its Motion in Limine, asserts
that Mr. Chtaini may only be impeached based on one alias his
use of the name of his brother, "Abdullah Chtaini." Gov'ts Mot.
in Limine at 2, ¶ 5. The Government contends that "[a]ll other
aliases set forth in his criminal histories are either nicknames
("Dino" or "Tony") or are misspellings of his first or last
name." Id. Despite the Government's assertions, the Court notes
that the Government itself has alleged that Mr. Chtaini used
numerous aliases in the course of his criminal conduct, including
the use of false names to rent apartments, warehouses, and
cellular telephones. See generally Gov'ts First Rule 404(b)
Notice; Gov'ts Second Rule 404(b) Notice. As such, limiting Mr.
Chtaini's impeachment to one alias might not cover the entire
universe of aliases used; the Court simply does not have
sufficient information at this time. Moreover, the alleged
misspellings of Mr. Chtaini's name in various law enforcement
papers and other documents might not have been accidental;
rather, the misspellings might have been an intentional effort by
Mr. Chtaini to hide his true identity and throw law enforcement
off of his trial through confusion. Defendants are certainly
entitled to explore this potential line of inquiry. Finally, the
Court notes with great irony that the Government previously
argued that the various aliases, or nicknames, of the Defendants such as "Julio," "Ooks," "Los," "Bush," "Short," and
"Mellow," should remain in the Indictment because (1) these
nicknames were "the only name by which some of the witnesses know
the respective defendant," and (2) "[t]he aliases, which are
really just nicknames, carry no negative value or prejudicial
effect in them." See Gov'ts Omnibus Response at 15. Allowing
the Government use of such ...