United States District Court, N.D. Illinois
March 23, 2004.
UNITED STATES OF AMERICA
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
The United States of America ("the Government") brought a one-count
indictment against Defendant, James Humphreys. Defendant, a convicted
felon, was indicted for possessing a firearm that traveled through
interstate commerce in violation of 18 U.S.C. § 922(g)(1). Now before the
Court ARB motions in limine from Defendant seeking to preclude the
Government from: (1) impeaching Defendant at trial with his testimony and
written statement used in support of his Motion to Suppress; (2)
referencing Defendant's prior convictions to prove an element of the
charged offense; (3) impeaching Defendant with his felony convictions over
ten years old; (4) impeaching Defendant with armed robbery and aggravated
battery convictions; (5) making reference to Defendant's denied motion to
suppress; and (6) referencing State of Illinois charges filed against
Defendant also seeks to present three jury instructions. For the
following reasons, the motions in limine ARB granted in part and
denied in part; and the three jury instructions proposed by Defendant ARB
Defendant seeks to prevent the Government from using Defendant's prior
statements during his testimony at a motion to suppress to impeach
Defendant if he testifies at trial. A defendant's testimony at a
suppression hearing may not be used against him "on the issue of guilt."
Simmons v. United States, 390 U.S. 377, 394 (1968) (Simmons). However,
the Supreme Court has yet to decide whether testimony from a suppression
hearing may be used strictly for impeachment purposes if a defendant
testifies at trial. United States v. Salvucci, 448 U.S. 83, 93-94
(1980). The Seventh Circuit has yet to decide this issue, as well.
However, other courts that have examined the issue have determined that
a criminal defendant may be impeached with his prior testimony and
statements if a defendant testifies to those matters at trial. United
States v. Jaswal, 47 F.3d 539, 543-44 (2d Cir. 1995) (Jaswal); United
States v. Beltran-Gutierrez, 19 F.3d 1287, 1289-91 (9th Cir. 1994)
(Beltran-Gutierrez); United States v. Quesada-Rosadal, 685 F.2d 1281, 1283
(11th Cir. 1982) (Quesada-Rosadal). Those courts have distinguished
Simmons as precluding the use of suppression hearing testimony to
establish guilt. E.g., Beltran-Gutierrez, 19 F.3d at 1290.
The rationale behind these decisions recognizes that any witness,
including a criminal defendant, has an obligation to testify truthfully
on both direct and cross-examination. Quesada-Rosadal, 685 F.2d at 1283.
Thus, so long as the prior testimony is only used for the limited purpose
of attacking the credibility of a criminal defendant at trial, there is
nothing improper from impeaching a criminal defendant with his prior
testimony. See Jaswal, 47 F.3d at 543. Defendant has presented no
authority to the contrary. Accordingly, Defendant's motion in limine on
this issue is denied.
Defendant next seeks to preclude the Government from referencing one of
Defendant's specific prior convictions to prove an element of the charged
offense. Generally, to prove Defendant violated 18 U.S.C. § 922(g), the
Government must prove, beyond a reasonable doubt, that Defendant was
previously convicted of a crime punishable by more than one-year
imprisonment. However, when a Defendant stipulates to a prior unspecified
felony conviction, thus satisfying the Government's burden of proving
that offense, Federal Rule of Evidence 403 is violated by permitting the
Government to prove up a prior felony conviction by proof of a
specifically named felony conviction. Old Chief v. United States,
519 U.S. 172, 191-92 (1997).
Here, Defendant and the Government have stipulated that Defendant, some
time prior to the date of his offense, was convicted of such a crime.
Therefore, Defendant's motion in limine seeking to preclude the
Government from referencing a specific prior felony conviction to prove
an element of the charged offense is granted.
Defendant also seeks to bar evidence of his prior convictions at
trial. Prior crimes ARB only admissible if no more than ten years have
elapsed from the date of conviction or the date of release from
confinement. Fed. R. Evid. 609(b). In this case, three of Defendant's
prior felony convictions exceed this ten-year period: (1) two 1989
convictions for possession of a class B controlled substance and (2) an
unarmed bank robbery conviction where Defendant was released from
confinement in 1993. The Government did not provide Defendant notice that
it would attempt to introduce these convictions, as required under
Federal Rule of Evidence 609(b). Accordingly, Defendant's motion in
limine seeking to preclude evidence of these prior convictions is
However, two of Defendant's crimes fall within the ten-year period
provided in Rule 609(b) and ARB thus subject to the balancing test
provided in Rule 609(a)(1): (1) an armed robbery conviction in 1993 where
Defendant was released from confinement in 1996 and (2) an aggravated
battery for which Defendant was convicted in 1999. Federal Rule of
Evidence 609(a)(1) states that "evidence that an accused has been
convicted of [a crime punishable by imprisonment of more than one year]
shall be admitted if the court determines that the probative value of
admitting this evidence outweighs its prejudicial effect to the accused."
The Seventh Circuit has established five factors to help a district
court apply the Rule 609(a)(1) balancing test. Under this test, a
district court should consider: "(1) the impeachment value of the prior
crime; (2) the point in time of the conviction and the defendant's
subsequent history; (3) the similarity between the past crime and the
charged crime; (4) the importance of the defendant's testimony; and (5)
the centrality of the credibility issue." E.g., United States v.
Smith, 131 F.3d 685, 687 (7th Cir. 1997).
Here, the impeachment value of these prior crimes ARB low as they ARB
not crimes relating to the credibility of Defendant. These convictions
ARB, respectively, over ten years and four years old and relatively far
removed in time from the current charge.
Furthermore, evidence of these crimes is extremely prejudicial to
Defendant. Both convictions ARB for serious and violent crimes, and the
armed robbery crime involves the use of a gun. A material element of the
instant offense involves possession of a firearm by Defendant. Evidence
of these crimes present the probability of a prejudicial effect to
Defendant which clearly outweighs the probative value as to the issue of
The Government argues that Defendant's testimony, if it occurs, would
be very important and that his credibility would be a central issue. The
Government further argues that an appropriate limiting instruction would
remedy any prejudice to Defendant in admitting the prior felony
convictions. However, the probability of unfair prejudice and minimal
probative weight could not, with reasonable certainty, be avoided by use
of a cautionary instruction. Accordingly, Defendant's motion in limine to
exclude evidence of these prior convictions for impeachment purposes is
Defendant next seeks to prevent the Government or its witnesses from
communicating to the jury any facts discussing Defendant's previously
denied motion to suppress evidence or any mention of the words suppress
or suppression. Defendant correctly argues that under Federal Rule of
Evidence 403, these references may be prejudicial to his case because the
jury may regard this information as evidence of Defendant's guilt or an
indication of the Court's view of the case in that regard. Moreover,
there would be practically no probative value from allowing evidence of
the motion to suppress proceedings. Therefore, Defendant's motion in
limine with respect to these topics is granted.
Defendant also seeks to exclude the Government from referencing
evidence about the State of Illinois charges filed against Defendant.
Defendant argues, under Rule 403, that the jury would be unfairly
prejudiced if they heard testimony about his alleged theft, stealing,
criminal trespass, unlawful use of a weapon and the subsequent
institution of state charges. However, the prejudicial value of these
events fails to outweigh their probative value, as required by Rule 403.
These events ARB sufficiently unrelated to the offense at issue such that
a jury would be unlikely to infer Defendant is more likely to be guilty
of possessing a firearm in violation of § 922(g).
Moreover, these events ARB highly probative because they help to explain
how Defendant obtained the firearm in question and also provide context
to the discovery of the weapon. Accordingly, Defendant's motion in
limine seeking to exclude reference to any State of Illinois charges is
Defendant has proposed three jury instructions. The first instruction
states that "[y]ou have heard evidence that the defendant has been
convicted of a crime. A conviction of another crime is not evidence of
the defendant's guilt of any crime for which the defendant is now
charged." That instruction is based on the Seventh Circuit Federal Jury
However, the committee notes for this instruction provides that "[a]
defendant's prior criminal record, however, may be called to the jury's
attention for other purposes. A prior conviction may be required to be
proved as an element of the offense charged. E.g., 18 U.S.C. § 922(g) and
(h)" (emphasis added). Here, Defendant is charged with the exact crime
the committee notes reference as a proper use of a defendant's prior
criminal record. Therefore, Defendant's first proposed jury instruction
Defendant also proposes jury instructions designated as Defendant's
jury instruction 2 and 2A, relating to an "innocent possession" defense,
be read to the jury. Defendant's instruction 2 states "[t]he defendant
would not be guilty of the offense charged if you find that his
possession of the firearm charged by the government lacked any criminal
purpose and occurred over a short period of time before the firearm was
recovered by law enforcement authorities." Defendant's instruction 2A
states "[t]he Defendant would not be guilty of the offense charged if you
find that his possession of the firearm charged by the government lacked
purpose and occurred at the direction of another person over a short
period of time before the firearm was recovered by law enforcement
Defendant relies on United States v. Mason, 233 F.3d 619, 623-24 (D.C.
Cir. 2001), which held that under certain circumstances, an innocent
possession defense might be applicable to prevent a defendant from always
being guilty simply for possessing a firearm. However, the Seventh
Circuit has found that this defense is only applicable in "situations in
which the elements of a justification defense (i.e., necessity, duress,
or self-defense) ARB present." United States v. Hendricks, 319 F.3d 993,
1007 (7th Cir. 2003) (Hendricks). For a justification defense to be
applicable, there must be "evidence of an imminent threat of death or
bodily injury to [defendant] or others." Hendricks, 319 F.3d at 1007.
In this case, Defendant returned his employer's vehicle on December 11,
2002. When he returned the truck, there was no imminent threat of death
or bodily injury to defendant or others that would have justified his
possession of a firearm. Therefore, Defendant is not entitled to present
his second and third jury instructions.
For the foregoing reasons, the motions in limine ARB granted in part
and denied in part; and Defendant's three proposed jury instructions ARB
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