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United States v. Kieffer

April 10, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
HOWARD O. KIEFFER, DEFENDANT.



The opinion of the court was delivered by: Patrick A. Conmy, Senior District Judge United States District Court

ORDER

Before the Court is the Defendant's motion in limine. The motion seeks to prevent the Government from introducing evidence of the Defendant's prior convictions. The motion was filed in response to the Government's filing of a Notice of Intent to use Rule 609 Evidence. I

BACKGROUND

The superseding indictment in this case charges the Defendant with one count of mail fraud and one count of making a false statement. The false statement charge relates to a petition for admission to the Bar of the United States District Court for the District of North Dakota submitted by the Defendant in which the Government alleges the Defendant falsely claimed to be a law school graduate and a member of the bar of another federal court. The mail fraud claim relates to allegations that the Defendant used his admission to the Bar of the United States District Court for the District of North Dakota in order to gain admission to the Bar in other courts and that he represented a number of individuals in various courts and was paid for his efforts.

As required by Rule 609, the Government has filed notice of intent to use evidence of the Defendant's prior convictions if he chooses to testify. The prior convictions would be used only during cross-examination of the Defendant and for the purpose of impeaching his credibility. The prior convictions consist of a 1989 federal felony conviction on four counts of making false claims against the United States in violation of 18 U.S.C. § 287. The Defendant was sentenced to five years imprisonment and five years of supervised release. He was released from imprisonment on January 20, 1993, and from supervision on May 1, 1994. The false claims related to fraudulent tax returns and earnings statements the Defendant submitted to the IRS which resulted in his collecting over $200,000 in tax refunds which he was not due.

The parties agree the conviction involves acts of dishonesty or false statements and falls outside ten year time limit established by Rule 609(b). The parties disagree as to whether the probative value of the evidence substantially outweighs its prejudicial effect.

II. DISCUSSION

A. Rule 609

Rule 609 of the Federal Rules of Evidence, in pertinent part, provides as follows:

(a) General rule.--For the purpose of attacking the character for truthfulness 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 evidence 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 outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

(b) Time limit. 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. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party ...


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