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March 23, 2004.


The opinion of the court was delivered by: JOHN W. DARRAH, District Judge


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.

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 refused. Page 2


  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. Page 3

  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 granted. Page 4

  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 ...

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