Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 03 CR 78-Theresa L. Springmann, Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge
Before POSNER, WOOD, and SYKES,Circuit Judges.
Federal Rule of Evidence 609(b) severely limits the use of a prior conviction to impeach a witness if a period of more than ten years has elapsed since the conviction or the witness's release from any confinement imposed for that conviction. This appeal presents the question of whether probation following a prison term constitutes "confinement" for purposes of the ten-year time limit under Rule 609(b)-in other words, whether the ten-year clock begins to run upon the witness's release from prison or the expiration of his ensuing probation or parole. We conclude that probation does not constitute "confinement" within the meaning of Rule 609(b).
Anthony Rogers was tried in 2005 on charges of making a false statement on a firearm-purchase form and being a felon in possession of a firearm. He testified in his own defense and was impeached with his 1993 conviction for distribution of cocaine. Rogers was released from prison on that conviction in 1994 after his sentence was modified to probation; he then remained on probation supervision until 1999. Because probation does not constitute confinement, however, Rogers's conviction fell outside the ten-year time limit of Rule 609(b), and its admission for impeachment purposes was therefore error. But given the overwhelming evidence of his guilt, we conclude the error was harmless and affirm his convictions.
Anthony Rogers became the subject of a federal investigation when he made two separate purchases of the same make and model handgun in a single month-a sign of possible straw purchases. These purchases required Rogers to lie on federal firearms paperwork-specifically, forms requiring (among other things) that he attest truthfully that he was the firearm's "actual buyer." One of the guns was linked to a crime scene in Chicago.*fn1 In addition, Rogers had a felony conviction for cocaine dealing in Texas in 1993, making it illegal for him to possess a firearm. See 18 U.S.C. § 922(g).
In the course of the investigation, ATF agents met with Rogers at the apartment he shared with his girlfriend. He admitted purchasing a firearm for a friend. He said he was initially reluctant to do so because he thought it might be illegal, but his friend ultimately persuaded him to make the purchase. Two handguns were eventually recovered from the apartment-one purchased in one of the suspected straw purchases and another that Rogers had purchased in 1992 or 1993 when he was in the military.
Rogers was indicted for making a false statement to a federally licensed firearms dealer, see 18 U.S.C. § 924(a)(1)(A), and being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1). The case proceeded to a one-day jury trial on April 12, 2005. Rogers took the stand in his own defense, admitting the straw purchase but claiming he thought his answer to the "actual buyer" question on the federal form was truthful. He also testified that the two guns found in the apartment had once been his but that he gave them to his girlfriend and never "messed" with them. The government impeached him with his 1993 conviction for cocaine dealing. Rogers's girlfriend also testified; she said Rogers gave her the guns for her protection. Rogers was convicted on both counts.
The district court made two posttrial rulings on the admission of Rogers's prior conviction. In the first ruling, the court erroneously believed that the conviction was less than ten years old and therefore admissible under Federal Rule of Evidence 609(a) on a showing that the probative value of this evidence outweighed its prejudicial effect. This ruling was based on the court's initial view that although Rogers had been released from prison on the 1993 conviction a year later, in 1994-outside the rule's ten-year window-he had remained on probation until 1999, and therefore the conviction fell within the ten-year time limit. On Rogers's motion for a new trial, however, the court corrected itself, holding that the time Rogers spent on probation did not bring the conviction within the time limit. Rule 609(b) requires that convictions outside the ten-year time limit satisfy a more strenuous standard: the conviction's probative value must substantially outweigh its prejudicial effect. The district court concluded that the 1993 cocaine-dealing conviction did not meet this more demanding standard. But the court found the error harmless and denied the motion for a new trial.
The sole issue in this appeal is whether Rogers's 1993 conviction was properly admitted to impeach him as a witness. Rule 609 of the Federal Rules of Evidence governs the admissibility of a witness's prior convictions for impeachment purposes and permits impeachment of an accused as a witness if the probative value of his prior conviction outweighs its prejudicial effect. The rule generally excludes convictions more than ten years old, however:
Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
FED. R. EVID. 609(b). The ten-year time limit thus runs from the date of conviction or "the release of the witness from the confinement imposed for that conviction," whichever is later. There is no question here that the date of Rogers's conviction, 1993, falls outside the ten-year time limit, as does the date of his release from prison, 1994. We must decide whether the probation that followed his release from prison for ...