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United States of America v. John Smithson

January 26, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
JOHN SMITHSON,
DEFENDANT.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER RE: DEFENDANT'S MOTIONS IN LIMINE

Defendant John Smithson moves in limine for an order seeking pretrial rulings both admitting and excluding certain evidence at trial. (ECF No. 227.) The government filed a response to Defendant's motion on January 24, 2012. (ECF No. 228.) Each of Defendant's motions are addressed below.

This matter is deemed suitable for decision without oral argument. E.D. Cal. R. 230(g). Therefore, the hearing scheduled to commence at 11:00 a.m. on January 28, 2012 is vacated.

A. Pre-Trial Convictions

1. Terry Roberson

Defendant seeks admission of Terry Roberson's "conviction in the Northern District of 18 U.S.C. 641, theft of government property, a misdemeanor." (Def.'s Mot. in Limine ("MIL") 2:19-22, 3:2-9.)

This motion is DENIED as moot in light of the government's statements in its opposition that "the fact of Terry Roberson's prior misdemeanor conviction is properly admissible as a prior bad act within the meaning of Rule 608," and "[D]efendant is allowed to introduce evidence that: (1) Terry Roberson was convicted of a misdemeanor in 1999; and (2) the misdemeanor was theft of government property." (Gov'ts Opp'n 2:13-16, 3:1-4.)

2. Gregory Ross

Defendant seeks admission of potential witness Gregory Ross's convictions for 1) 18 U.S.C. 500, fraudulent money orders in 1999; 2) fraudulent checks in South Carolina state court in 1997; and fraudulent checks in South Carolina state court in 2006. (Def.'s MIL 2:23-26.)

The government counters that the 2006 conviction is inadmissible under Federal Rule of Evidence ("Rule") 609(a)(2), arguing that "[b]ad check crimes are not per se crimes of dishonesty or false statement[,]" and Defendant "has not proffered any facts, or indeed, the statute of conviction, which would implicate the elements of the crime." (Gov'ts Opp'n 3:15-23.) The government further rejoins that the 1997 and 1999 convictions are inadmissible under Rule 609(b), arguing that they are "stale," and Defendant "has not set forth any specific facts and circumstances supporting . . . admission[.]" Id. 4:6-8, 4:20-22.

Rule 609 governs the admission of prior convictions for impeachment. Under Rule 609(a)(2), "for any crime regardless of the punishment, [evidence of a criminal conviction] must be admitted if the court can readily determine that establishing the elements of the crime required proving--or the witness's admitting--a dishonest act or false statement." Crimes involving a "dishonesty and false statement" means crimes such as perjury, subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the witness's propensity to testify truthfully. Historically, offenses classified as crimina falsi have included only those crimes in which the ultimate criminal act was itself an act of deceit.

Fed. R. Evid. 609 advisory committee's notes, 2006 amendments (internal quotation marks, internal brackets and citation omitted). Thus, "the proponent [of the past conviction must] have ready proof that the conviction required the factfinder to find, or the defendant to admit, an act of dishonesty or false statement." Id. The Advisory Committee Notes to the 2006 Amendments to Rule 609 further explain:

Ordinarily, the statutory elements of the crime will indicate whether it is one of dishonesty or false statement. Where the deceitful nature of the crime is not apparent from the statute and the face of the judgment -- as, for example, where the conviction simply records a finding of guilt for a statutory offense that does not reference deceit expressly -- a proponent may offer information such as an indictment, a statement of admitted facts, or jury instructions to show that the factfinder had ...


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