USA v OHLER, 9850282
U.S. 9th Circuit Court of Appeals
USA v OHLER
9850282
UNITED STATES OF AMERICA,No. 98-50282Plaintiff-Appellee,D.C. No.v.CR-97-02278-JTMMARIA SUZUKI OHLER,OPINIONDefendant-Appellant.
Appeal from the United States District Courtfor the Southern District of CaliforniaJeffrey T. Miller, District Judge, PresidingSubmitted March 2, 19991Pasadena, CaliforniaFiled March 9, 1999Before: Alfred T. Goodwin, Melvin Brunetti, andThomas G. Nelson, Circuit Judges.Opinion by Judge Brunetti
______________________COUNSEL Gary P. Burcham and Benjamin L. Coleman, Federal Defend-ers of San Diego, Inc., San Diego, California, for thedefendant-appellant.Jonah H. Goldstein, Assistant United States Attorney, SanDiego, California, for the plaintiff-appellee.
_____________________________OPINION BRUNETTI, Circuit Judge:Maria Suzuki Ohler ("Ohler") appeals from a jury verdictfinding her guilty of one count of importation of marijuana,in violation of 21 U.S.C. SS 952 and 960, and one count ofpossession of marijuana with intent to distribute, in violationof 21 U.S.C. S 841(a)(1). Ohler contends that the district courterred when it concluded that evidence of her 1993 convictionfor possession of methamphetamine was admissible underRule 609(a)(1) of the Federal Rules of Evidence and grantedthe government's motion in limine. We have jurisdiction pur-suant to 28 U.S.C. S 1291 and affirm.I. Facts and Proceedings BelowOhler attempted to enter the United States from Mexicothrough the San Ysidro, California, Port of Entry on July 29,1997. As Ohler, the driver and sole occupant of a 1984 GMCvan, passed through the port of entry, a customs inspectornoticed that someone had tampered with one of the van's inte-rior panels. Customs inspectors searched the van and discov-ered over eighty-one pounds of marijuana. Ohler was arrestedand subsequently indicted on August 6, 1997, for importationof marijuana and possession of marijuana with intent to dis-tribute.Because Ohler had been previously convicted on February13, 1993, for possession of methamphetamine, the govern-ment filed motions in limine asking the district court to admitOhler's prior felony convictions as character evidence underRule 404(b) and impeachment evidence under Rule 609(a)(1).The district court denied the government's motion in limineto admit Ohler's prior conviction as character evidence underRule 404(b) and reserved ruling on whether the prior convic-tion was admissible for impeachment purposes under Rule609(a)(1). On the morning of the first day of Ohler's trial, thisdistrict court concluded that, if Ohler were to testify on herown behalf, evidence of her past criminal conviction would beadmissible under Rule 609(a)(1) to impeach her credibility.After the government concluded its case-in-chief, Ohlertestified in her own defense and denied that she had anyknowledge of the marijuana discovered in the van. Specifi-cally, she testified that the van had been taken without herpermission the night before her arrest, that she had gone toMexico simply to retrieve the van, and that she was arrestedwhen she attempted to return to the United States. During herdirect examination, Ohler admitted that she had been previ-ously convicted of possession of methamphetamine in 1993.On cross-examination, the government asked Ohler if herprior possession conviction was a felony and Ohler answeredaffirmatively. Ohler then explained on redirect examinationthat her prior drug possession conviction was for possessionof a personal use quantity rather than for possession of a dis-tribution quantity.At the conclusion of Ohler's two day trial, the jury foundher guilty of importation of marijuana and possession of mari-juana with intent to distribute. The district court sentencedOhler to 30 months imprisonment and three years of super-vised release and assessed a $200 penalty.II. Discussion[1] This Court has held that, when a criminal defendantintroduces evidence of his prior conviction during his directexamination, the criminal defendant waives the right to appealthe district court's in limine ruling that the prior convictionwas admissible under Rule 609(a)(1). See United States v.Williams, 939 F.2d 721, 725 (9th Cir. 1991); Shorter v.United States, 412 F.2d 428, 431 (9th Cir. 1969); see alsoUnited States v. Bryan, 534 F.2d 205, 206 (9th Cir. 1976) (noreversible error even if evidence of prior conviction is notadmissible when defendant introduces prior conviction intoevidence). Ohler attempts to circumvent the express holdingof Williams by arguing that Williams is no longer applicableafter the 1990 amendments to Rule 609(a)(1). Ohler's argu-ment is without merit.Before Rule 609 was amended in 1990, it read: For the purpose of attacking the credibility of a wit- ness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprison- ment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.Fed. R. Evid. 609 (amended 1990).In 1990, the statutory limitation that a witness's prior con-viction could only be introduced during cross examination toimpeach the witness's testimony was removed from Rule 609.The amended and current version of Rule 609(a) reads: (a) General Rule. For purposes of attacking the credibility of a witness, (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evi- dence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence out- weighs its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of crime shall be admitted if it involved dishonesty or false statement, regardless of punishment.Fed. R. Evid. 609(a).The Advisory Committee Note to Rule 609 explains whythe limitation that a defendant's prior conviction could onlybe elicited during cross examination was removed from Rule609. The Advisory Committee Note states: The amendment to Rule 609(a) makes two changes to the rule. The first change removes from the rule the limitation that the conviction may only be elic- ited during cross-examination, a limitation that virtu- ally every circuit has found to be inapplicable. It is common for witnesses to reveal on direct examina- tion their convictions to `remove the sting' of the impeachment.Fed. R. Evid. 609 advisory committee note. The advisorycommittee note demonstrates that, even prior to the 1990amendments to Rule 609, a criminal defendant could intro-duce evidence of his prior convictions during his direct exam-ination because most courts found the cross-examinationlimitation inapplicable. See, e.g., United States v. Bad Cob,560 F.2d 877, 883 (8th Cir. 1977); United States v. Dixon,547 F.2d 1079, 1082 n.2 (9th Cir. 1976).Ohler contends that "as Rule 609(a)(1) now reads, there isno limitation as to who may introduce evidence of a priorconviction under Rule 609; if the defendant wishes to`remove the sting' of Rule 609 evidence by bringing the con-viction out on direct examination, such a strategy is statutorilysanctioned." Ohler, therefore, argues that, because the strat-egy of "removing the sting" is now statutorily sanctioned byRule 609, a criminal defendant does not waive the right toappeal an in limine ruling that a prior conviction is admissiblewhen the defendant introduces evidence of his prior convic-tion during his direct examination. Ohler's argument is merit-less because even prior to the 1990 amendments to Rule 609and this Court's decision in Williams a criminal defendant inthis circuit could "remove the sting" of Rule 609 evidence byintroducing evidence of his prior convictions during his directexamination.This Court, in 1976, examined the text of former Rule 609and recognized that the first sentence explicitly stated thatevidence of a prior conviction could only be admitted if elic-ited from the witness or established by public record duringcross-examination. See Dixon, 547 F.2d at 1082 n.2. Despiterecognizing the cross-examination limitation in former Rule609, this Court declared that "[i]t seems clear from the legis-lative history that on direct examination, a party may elicit theevidence of a prior conviction from his own witness ; if thewitness has forgotten or denies the existence of the convic-tion, the party may then introduce evidence of the convictionby public record, even though this does not take place oncross-examination." Id. (emphasis added). The Court rea-soned that the purpose of the cross-examination limitation informer Rule 609 was to insure that a prior conviction was notused to impeach a person who did not testify and that this pur-pose was not frustrated when a party elicited evidence of aprior conviction from his own witness during direct examina-tion. Id.Assuming, without deciding, that Ohler is correct in statingthat Rule 609 now statutorily sanctions the "remove the sting"strategy that criminal defendants often employ, the 1990amendments to Rule 609 do not reflect a true change in thelaw because, since at least this Court's decision in Dixon, acriminal defendant in this circuit has been allowed to intro-duce evidence of his prior criminal convictions during hisdirect examination. Therefore, when Williams was decided in1991, a criminal defendant was explicitly allowed, despite thelanguage of former Rule 609, to introduce evidence of hisprior convictions during his direct examination. The 1990amendments to Rule 609 do not affect the validity and/orapplicability of the Williams decision because the "remove thesting" strategy has long been sanctioned by this Court and the1990 amendments to Rule 609 only codify the law as itexisted when Williams was decided.This Court's decisions in Dixon and Williams do not standalone. Other circuit courts have long recognized that a crimi-nal defendant can introduce evidence of his prior convictionsduring his direct examination, see, e.g. , Bad Cob, 560 F.2d at883 ("The introduction by a witness himself, on his direct, ofa prior conviction is a common trial tactic, recommended bytextwriters on trial practice."), and have also held that a crimi-nal defendant waives the right to appeal an in limine rulingthat a prior conviction is admissible when the defendant intro-duces evidence of his prior conviction during his direct exam-ination. See, e.g., United States v. Gaitan-Acevedo, 148 F.3d577, 591-92 (6th Cir.), cert. denied, Crehore v. United States,119 S. Ct. 256, and rehearing denied, 119 S. Ct. 457 (1998);Gill v. Thomas, 83 F.3d 537, 541 (1st Cir. 1996); UnitedStates v. DePriest, 6 F.3d 1201, 1209 (7th Cir. 1993); UnitedStates v. Vega, 776 F.2d 791, 792 (8th Cir. 1985). Further-more, no circuit court has found it necessary to reexamine thewaiver issue in light of the 1990 amendments of Rule 609.See, e.g., United States v. Fisher , 106 F.3d 622, 629 (5th Cir.1997) (defendant does not waive right to appeal); UnitedStates v. Smiley, 997 F.2d 475, 479-80 (8th Cir. 1993) (defen-dant waives right to appeal); United States v. Brown, 956 F.2d782, 787 (8th Cir. 1992) (same). These decisions reinforce theposition of the advisory committee that the 1990 amendmentsto Rule 609 only removed a limitation that most courtsalready found inapplicable and support the conclusion thatthis Court's decision in Williams has not been disturbed bythe 1990 amendments to Rule 609.Ohler's reliance on the Fifth Circuit's decision in Fisher tosupport the argument that the 1990 amendments to Rule 609represent a fundamental change in the law that affects thisCourt's decision in Williams is misplaced. The Fisher deci-sion does not address the 1990 amendments to Rule 609. SeeFisher, 106 F.3d at 629. It simply follows Fifth Circuit prece-dent that holds that a party does not waive the right to appealan in limine ruling that a prior conviction is admissible whenthe defendant introduces evidence of his prior conviction dur-ing his direct examination. Id. (citing Reyes v. Missouri Pac.R.R., 589 F.2d 791 (5th Cir. 1979)). Thus, the Fisher decisiondoes not rely on the 1990 amendments to Rule 609 but relieson precedent that pre-dates 1990 to conclude that a defendantdoes not waive the right to appeal a district court's in limineruling when the defendant introduces evidence of his priorconvictions during his direct examination. See id. Just as thelaw of the Fifth Circuit has not been affected by the 1990amendments to Rule 609, the law of this circuit and theWilliams decision have not been altered by the 1990 amend-ments to Rule 609.[2] Ohler argues that even if Williams is still good law, thiscase is distinguishable from Williams because the governmentin this case affirmatively moved to introduce the prior convic-tion. This argument is wholly without merit and disingenuous.This case and Williams are indistinguishable. In Williams,"[t]he district court ruled in limine that the prosecution couldadmit into evidence for impeachment purposes under Rule609(a)(1) Williams's prior state conviction for possession ofmarijuana for sale." Williams, 939 F.2d at 723. Here, Ohlerfaced the exact same situation as the defendant in Williams--an adverse in limine ruling allowing the introduction of aprior conviction for impeachment purposes--and she, like thedefendant in Williams, decided to introduce evidence of herprior conviction during her direct examination to "remove thesting" of the prior conviction. In so doing, Ohler waived herright to appeal the district court's in limine ruling that herprior conviction was admissible under Rule 609(a)(1).Williams, 939 F.2d at 725.Because Ohler waived her right to appeal the districtcourt's in limine ruling, we need not decide whether the dis-trict court erred when it determined that Ohler's prior convic-tion for possession of methamphetamine was admissible forimpeachment purposes under Rule 609(a)(1) of the FederalRules Evidence.AFFIRMED. the end