Correcting Course: Re-Evaluating the Admission of 18 U.S.C § 922(g)(1) Convictions under FRE 609(a)

February 2022 | Joe Lehman & Safoora Salman (University of Illinois at Urbana-Champaign)

Introduction

Federal Rule of Evidence 609(a) governs the use of a prior criminal conviction to attack a witness’s credibility. In general, evidence of a prior felony “must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness [being impeached] is not a defendant,” and “must be admitted in a criminal case in which the witness [being impeached] is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant.”[1] Rule 609(a) also provides that, regardless of whether a prior conviction was a misdemeanor or a felony, the conviction “must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness admitting — a dishonest act or false statement.”[2] If the prior conviction does not meet those criteria, then the conviction may not be admitted under this Rule. 

However, the currently prevailing practice in the federal courts allows the Government to circumvent Rule 609(a) when a court permits the admission of a conviction under 18 U.S.C. § 922(g)(1),[3] but excludes the underlying felony.[4] Such admission directly conflicts with Rule 609(a)’s broad scope; the Rule is not limited to evidence of the conviction itself, but applies to all evidence of a given criminal conviction. As an important note, while Rules 609(a)(1)(A) and 609(a)(1)(B) provide different balancing tests depending on whether or not the witness being impeached is a criminal defendant, those balancing tests do not apply here. This argument only addresses situations in which a court excludes evidence of an underlying felony conviction, but then admits a conviction for being a felon-in-possession, when the possession charge is predicated on the inadmissible felony. Of course, the court must engage with a balancing test when addressing the admissibility of the felon-in-possession charge, but this argument does not address the admissibility of the felon-in-possession conviction. Rather, it addresses only the concerns regarding reference to convictions that the court has already excluded, and how to alter verbiage to shield the fact finder from improper information.

Judge Virginia Kendall of the U.S. District Court for the Northern District of Illinois squarely faced this verbiage issue in 2008, and her opinion best highlights the problems with Rule 609(a) as currently construed. 

United States v. Lewis, et. al. 

In 2008, the United States of America charged Scott Lewis, Vernon Williams, and Lavoyce Billingsly with three drug-related charges in the U.S. District Court for the Northern District of Illinois. The three defendants went to trial, were convicted on all counts, and all three defendants filed post-conviction motions.[5] As relevant here, Mr. Scott Lewis objected to the admission of his prior convictions. During the trial, the court admitted three of Mr. Lewis’s convictions: a 1998 conviction for felon in possession of a firearm, a 1998 conviction for making a false statement to law enforcement, and a 2000 conviction for theft.[6] The court declined, however, to admit Mr. Lewis’s 1991 conviction for residential burglary. These four convictions represent the extent of Mr. Lewis’s criminal history. Mr. Lewis was found guilty, and he filed a post-trial motion, arguing that “it was error to refer to this conviction as possession of a firearm by a felon because it implicitly informed the jury of his prior inadmissible conviction - possibly leading them to speculate as to the nature of that conviction.”[7] Mr. Lewis cited only two cases in support of his position and did not address the text of Rule 609(a). The court denied Mr. Lewis’s post-trial motion.[8] 

The Lewis court’s error under the plain text of Rule 609(a)

The issue arises from the government’s use of Mr. Lewis’s 1998 conviction for being a felon in possession of a firearm. The only possible predicate for Mr. Lewis’s felon in possession conviction would be the 1991 conviction for felony burglary – the same conviction that the court excluded. By permitting the government to wield the felon in possession charge against Mr. Lewis, the court permitted the government to admit evidence of an inadmissible felony’s existence. While the Lewis court’s ruling may have been correct as a matter of precedent, it was clearly incorrect as a matter of textual interpretation.

It is true that, in Lewis, the government did not enter any direct evidence of the 1991 felony. But Rule 609(a) is not limited to direct evidence of a conviction. The Rule’s scope is much broader: it applies “evidence of a conviction.”[9] The word “of” extends Rule 609(a)’s reach to any evidence “relating to” the criminal conviction.[10] Here, the court itself acknowledged that, while “the admission of Lewis' felon in possession of a firearm conviction did not reveal any of the details of the underlying felony,” it nevertheless revealed “the fact of an underlying felony.”[11] Establishing the existence of a felony unquestionably “relates to” that criminal conviction. 

The text of the Rule itself commands that it be read with a broader scope than courts currently give it. This logic is bolstered by paths taken by courts in other contexts when faced with the sometimes-difficult task of defining the preposition “of.”[12]

In 2000, the US Court of Appeals for the Third Circuit addressed a similar use of the word “of” in the construction of a medical disclosure statute.[13] The statute at issue addressed the disclosure of medical records “of any individual.” The Commonwealth of Pennsylvania argued that the phrase “of any individual” did not apply to peer review reports, because the patients did not own the peer review reports.[14] In rejecting this reading, the Third Circuit reasoned that “the preposition "of " may be used to show connection or association, as well as ownership, and it seems clear that the term is used in the former sense here.”[15] Then, in 2003, the Tenth Circuit followed the Third Circuit’s lead. They found that, in the context of records disclosure, “the word “of” need not be read so narrowly [so as to only apply to ownership]. Thus, a rational reading is that it refers to records pertaining to or relating to an individual.”[16] Finally, in 2006, then-Circuit Judge Sonia Sotomayor wrote an opinion joining the Tenth and Third Circuits. She argued that “for a statute to be ambiguous, alternative dictionary definitions of a word must each make sense within the language and structure of the statute…Here, the definition of the word ‘of’ that indicates possession or ownership would render a significant part of §10806(b)(3)(A) a nullity.”[17] Accordingly, because the use of the word “of” only made sense if it meant “relating to,” that was the proper definition to conform to the preposition.[18]

Here, Rule 609(a)’s use of the word “of” only makes sense if it is read to mean “relating to.” Merriam-Webster lists 20 other possible definitions[19] of the word “of,” none of which make grammatical or logical sense in this context; the only solution is to read it to mean “relating to.”[20] Accordingly, Rule 609(a) must be understood to say: “the following rules apply to attacking a witness’s character for truthfulness by evidence [related to] a criminal conviction.” 

Addressing stare decisis

The suggestions in this article are, of course, simplified by the fact that, while there may not be precedent requiring a court to sanitize a defendant’s prior conviction,[21] the authors have found no precedent prohibiting such sanitization. An appellate decision requiring a court to sanitize a conviction record under Rule 609(a) in the limited circumstances addressed in this article would not likely run into any precedential issues. That said, there may be an argument made that the weight of authority counsels against requiring judges to sanitize these records.[22] Such an argument, however, conflicts with the plain text of Rule 609(a) as explained supra. Judge James C. Ho recently gave a compelling argument for addressing such issues: “When faced with a conflict between text and precedent, [lower courts] should maximize the former—and minimize the latter.”[23] While Judge Ho was writing in the context of Constitutional interpretation, his argument applies equally to issues of statutory interpretation. That means that lower courts ought to be “faithful to the text and original understanding of [a given statute], to the maximum extent permitted by a faithful reading of binding precedent.”[24] In this circumstance, though, there is seemingly no conflict between the text and binding precedent, so there is no need to utilize Judge Ho’s balancing. 

If, however, an appellate court hypothetically rendered a binding decision permitting the government to use a felon-in-possession conviction to reference an underlying inadmissible felony, such a decision would directly conflict with the language of Rule 609(a). But absent an actual amendment to the Rule’s texts – an amendment that, for instance, limited 609(a) to only direct evidence of a criminal conviction – litigants would be justified in continuing to make textual arguments, and lower courts would be justified in entertaining those arguments. Indeed, “the judiciary's pronouncements do not bind successor courts, and those successor courts remain free to enforce [a] formerly disapproved statute if they have a different view of the Constitution [, a statute,] or the judicial role.”[25] And, eventually, should the hypothetical appellate court review the question for a second time, the court would be obligated to correct itself: when “a precedent clearly conflicts with the law we are sworn to uphold, the precedent normally must yield.”[26]

Public Policy of the Rules of Evidence

Setting aside the discussion of text and precedent, the policy behind the Rules of Evidence lends support to this textual approach. The Rules themselves explain that they must be construed “to administer every proceeding fairly…and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.”[27] Rule 609 generally must, then, be understood to further that goal by protecting criminal defendants from a jury deciding to convict a defendant “for crimes other than those charged -- or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment.”[28] And this logic also extends to non-defendant witnesses. It is unfairly prejudicial to the party calling the witness (and unfair to the witness himself) to functionally impeach him with an inadmissible conviction. The proper administration of the American justice system depends, in large part, on a just and proper application of the Rules of Evidence.

Fixing the current practice 

Protecting the trees in the forest of evidence law brings us back to the court’s decision in Lewis. Precedent may not require a court to "sanitize [a defendant’s] prior conviction for possession of a firearm by a felon to eliminate any insinuation that he had a prior felony,”[29] but both the text of Rule 609(a) and the purpose of the Rules of Evidence do. The Rule’s text limits the government’s ability to enter any evidence related to a prior conviction, and felon-in-possession charges clearly relate to the underlying felony. But the solution is not necessarily to exclude the felon-in-possession charge from evidence. Indeed, there are some situations where gun possession may be probative under Rule 609(a).[30] Instead, when a felon-in-possession charge is admissible, but the underlying felony is not, the only proper course is to allow the government to admit evidence that the defendant or other witness was ineligible to possess a weapon. This verbiage balances the government’s interest in admitting a relevant conviction, while also protecting a defendant’s rights under Rule 609(a) to keep inadmissible convictions from the jury. Indeed, the Sixth Circuit acknowledged that this change in wording would be well within the discretion of a district court: “if a court conducted a Rule 403 analysis and concluded that the use of the term felon or felon-in-possession was unfairly prejudicial, we see no reason such a ruling [requiring alternative language] should not be upheld.”[31] 

While the Sixth Circuit’s acknowledgment comes closer to a proper reading of Rule 609(a), it must be taken further. District courts do not have the discretion to allow the use of the term felon-in-possession when the underlying felony is inadmissible; Rule 609(a) applies to evidence related to a conviction and confirming the existence of a felony relates to the conviction.

Conclusion

Thankfully, this problem finds an easy answer insofar as 1) the text of Rule 609(a) is clear, 2) there is no need to grapple with any textually erroneous binding precedent, and 3) the purpose of the Rules of Evidence is clear. If a conviction is inadmissible under Rule 609(a), then any evidence related to that conviction must also be excluded. Why the courts ignore the clear text of the Rule is a mystery, but the solution is simple: permit the government to enter evidence of convictions under 18 U.S.C. § 922(g)(1) when they are admissible, but if the underlying felony must be excluded, only allow the government to refer the § 922(g)(1) conviction as one for “ineligible possession.” This characterization has the advantage of being both accurate and faithful to the Rules of Evidence. It’s time for the federal courts to begin to replant the trees that they inadvertently helped the government cut down.[32]    

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Sources

1. FRE 609(a)(1)(a); 609(a)(1)(b).

2. FRE 609(a)(2).

3.  This Article will refer to these convictions as convictions for being a “felon-in-possession-of a-firearm” or for being a “felon in possession.” This verbiage is for ease of reference, and because this is how federal courts permit United States Attorneys to refer to these convictions. 

4.  See, e.g., United States v. Vo, 589 Fed. Appx. 720, 724 (5th Cir. 2014) (unpublished disposition) (affirming the district court’s decision to exclude evidence of a witness’s prior felonies, while noting that, during the course of trial, “it was clearly established that [a testifying witness] had served seven months for being a felon in possession.”); United States v. Frazier, 314 Fed. Appx. 801, 804 (6th Cir. 2008) (unpublished disposition) (affirming a district court’s decision to allow “evidence of [the defendant’s prior] conviction for possession of a firearm by a prior felon to impeach him.” Neither the district court nor the Sixth Circuit addressed the underlying felony); United States v. Phillips, 487 F. Supp. 3d 1126 (D.N.M. 2020) (admitting a prior conviction – under Rule 609 – for being a felon in possession, while excluding the predicate felony); United States v. Curry, 2009 U.S. Dist. LEXIS 48930, *4 (S.D. Ill. 2009) (same); United States v. Lewis, 2009 U.S. Dist. LEXIS 96173 (N.D. Ill. 2008) (same).

5. United States v. Lewis, 2009 U.S. Dist. LEXIS 96173 (N.D. Ill. 2008).

6. Id. at *8-9.

7. Supra note 5 (internal quotation marks omitted).

8. Supra note 5 at *49.  

9. Supra note 1. 

10. Of, Merriam-Webster’s Online Dictionary (accessed Nov. 27th, 2021).

11. Supra note 5 at *14.

12. Pacific Gas & Electric Co. v. Hart High-Voltage Apparatus Repair & Testing Co., Inc., 18 Cal. App. 5th 415, 435 (Cal. 5th Dist. App. 2017) (noting that “the case law and dictionary definition establish that, in the abstract, the preposition “of” can be defined in many ways,” and noting that the 1986 edition of Webster's Third New International Dictionary “lists 20 definitions” of the preposition “of”). 18 Cal. App. 5th at 434.

13. Penn. Protection & Advocacy, Inc. v. Houstoun, 228 F.3d 423 (3d Cir. 2000) (Alito, J.). 

14. Id. at 427.

15. Id. (citing Random House Dictionary of the English Language, 999 (1967)).

16. Ctr. for Legal Advocacy v. Hammons, 323 F.3d 1262, 1270 (10th Cir. 2003) (emphasis original).  

17. Prot. & Advocacy for Persons with Disabilities v. Mental Health & Addiction Servs., 448 F.3d 119, 125 (2nd Cir. 2006) (Sotomayor, J.). 

18. Id.

19. Supra note 10. 

20. Supra note 17 at 126.

21. Supra note 5 at *13 (internal quotation marks omitted).

22. See e.g., cases listed supra at note 4.

23. Williams v. Homeland Ins. Co., 2021 U.S. App. LEXIS 35337, *22, __ F.4th __, 2021 WL 5577020 (5th Cir. 2021) (Ho, J., concurring).

24. Id., citing Gamble v. United States, 139 S. Ct. 1960, 1984 (2019) (Thomas, J., concurring) ("[F]idelity to original meaning counsels against further extension of [] suspect precedents."); Hester v. United States, 139 S. Ct. 509, 509 (2019) (Alito, J., concurring in the denial of certiorari); Texas v. Rettig, 993 F.3d 408, 409 (5th Cir. 2021) (Ho, J., dissenting from denial of rehearing en banc); NLRB v. Int'l Ass'n of Bridge, Structural, Ornamental, & Reinforcing Iron Workers, Local 229, AFL-CIO, 974 F.3d 1106, 1116 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc) (cleaned up).  

25. Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 966-967 (2018). 

26. Lawrence v. State, 308 So.3d 544, 551 (Fla. 2020). 

27. FRE 102.

28. Thomas J. Reed, Admission of Other Criminal Act Evidence After Adoption of the Federal Rules of Evidence, 53 U. Cin. L. Rev. 113, 159 (1984) (citing United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982)).

29. Supra note 5 at *13 (internal quotation marks omitted). 

30. See e.g., United States v. Phillips, 487 F. Supp. 3d 1126, 1130 (D.N.M. 2020) (admitting a felon-in-possession conviction because the conviction 1) is relevant to proving the defendant’s felon status, and 2) the conviction would not cause “much if any additional prejudice.”); United States v. Causey, 9 F.3d 1341, 1344 (7th Cir. 1993) (affirming the district court’s admission of a defendant’s prior felon-in-possession conviction because 1) the conviction was probative of the defendant’s credibility, 2) the conviction’s recency made it relevant, and 3) the defendant had a choice to not testify). 

31. United States v. Ray, 803 F.3d 244, 260 (6th Cir. 2015).

32. Hon. Thomas B. Griffith, Lawyers and the Rule of Law, 16 Utah Bar J. 12, 12 (2003) (quoting Robert Bolt, A Man for All Seasons, 37, 38 (1962)).