United States v. Brackeen
969 F.2d 827 (1992)
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Rule of Law:
For a prior conviction to be admissible for impeachment purposes under Federal Rule of Evidence 609(a)(2), the crime must contain an element of deceit or false statement. Crimes of violent taking, such as bank robbery, are not per se crimes of 'dishonesty' under this rule.
Facts:
- In July 1990, Robert Nello Brackeen robbed three different banks on three separate days.
- In the first robbery, Brackeen and an accomplice, Jermaine Moore, presented a threatening note to a teller while Moore brandished a pistol.
- In the other two robberies, Brackeen acted alone and was unarmed.
- Brackeen was subsequently tried for aiding and abetting Moore in the armed bank robbery.
- At his trial, Brackeen's defense was that he did not know Moore was carrying a gun.
- Brackeen chose to testify as the sole defense witness to present this claim.
Procedural Posture:
- Robert Nello Brackeen was charged in a federal district court (trial court) with one count of aiding and abetting an armed bank robbery and two counts of unarmed bank robbery.
- Brackeen pleaded guilty to the two counts of unarmed bank robbery.
- A jury trial was held on the remaining count of aiding and abetting armed bank robbery.
- During the trial, Brackeen objected to the prosecution's use of his two guilty pleas for impeachment purposes.
- The trial court overruled the objection, admitting the evidence under Federal Rule of Evidence 609(a)(2) and finding it was a crime of dishonesty.
- The trial court explicitly stated it would not have admitted the evidence under the Rule 609(a)(1) balancing test.
- Following his conviction, Brackeen (appellant) appealed to the U.S. Court of Appeals for the Ninth Circuit.
- The original three-judge panel hearing the appeal called for the case to be heard en banc by the full court to resolve conflicting circuit precedents on the issue.
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Issue:
Does bank robbery constitute a crime involving 'dishonesty or false statement' under Federal Rule of Evidence 609(a)(2), making a prior conviction for it automatically admissible to impeach a testifying defendant?
Opinions:
Majority - Per Curiam
No. Bank robbery is not per se a crime involving 'dishonesty or false statement' under Federal Rule of Evidence 609(a)(2). The court reasoned that the term 'dishonesty' in the rule is ambiguous, having both a broad meaning (any breach of trust, like stealing) and a narrow one (behavior involving deceit or fraud). An examination of the legislative history, particularly the Conference Committee Report, reveals that Congress intended the narrower meaning, limiting the rule's automatic application to crimes 'in the nature of crimen falsi,' such as perjury, fraud, or embezzlement, which involve an element of 'deceit, untruthfulness, or falsification.' Because bank robbery is a crime of violent taking rather than a crime of deceitful conduct, it does not fall under this definition and is therefore not automatically admissible under Rule 609(a)(2).
Analysis:
This en banc decision resolves a significant intra-circuit split within the Ninth Circuit, clarifying the scope of Federal Rule of Evidence 609(a)(2). By adopting a narrow interpretation of 'dishonesty,' the court aligns itself with the majority of other federal circuits. The ruling mandates that for crimes not involving inherent deceit, such as robbery or theft, admissibility for impeachment must be determined under the balancing test of Rule 609(a)(1), which weighs the conviction's probative value against its prejudicial effect on the defendant. This provides greater protection to defendants who choose to testify, as their credibility cannot be automatically attacked with prior convictions for crimes of force or violence.
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