PHILLIPS, Chief Judge.
This appeal presents the question of whether the district court abused its discretion by permitting the Government to impeach the appellant by introducing evidence of two prior felony convictions which were more than ten years old, in violation of Rule 609(b) of the Federal Rules of Evidence.
James Dewey Sims appeals from his jury conviction for possession of a firearm as a previously convicted felon in violation of 18 U.S.C.Appendix § 1202(a)(1). On March 15, 1977, Sims was arrested in Pulaski County, Kentucky, while driving his automobile. During a search of Sims' vehicle, a Pulaski County deputy sheriff found a .38 caliber revolver underneath the front seat on the driver's side. Sometime in March 1977, that same .38 caliber revolver had been stolen from the home of one of Sims' neighbors. Sims was indicted and convicted on a single count indictment charging him with being a convicted felon in possession of a firearm. The underlying felony conviction recited in the indictment was the conviction of Sims on May 18, 1970, in the McCreary County Circuit Court at Whitley City, Kentucky, of the felony crime of knowingly possessing stolen property.
Sims testified that he had no knowledge of the pistol being in his vehicle. He stated that on Thursday, March 10, 1977, his son and a neighbor boy cleaned out the vehicle, including the space beneath the driver's seat. On the following day Sims traveled from Somerset, Kentucky, to Cincinnati, Ohio, attend the funeral of a relative. He testified that he was unaware that the pistol was in his car until it was found by the deputy sheriff.
In addition to appellant's 1970 felony conviction, the prosecution introduced, for the purpose of impeachment, evidence of two other prior felony convictions of appellant, both of which were more than ten years old. One was a 21 year old conviction for burglary in 1956. The second was a 12 year old conviction for interstate transportation of a stolen motor vehicle in 1965.
A previous trial of Sims on this indictment resulted in a deadlocked jury. Evidence of his two old convictions, the 1956 conviction for burglary and the 1965 conviction for interstate transportation of a stolen vehicle, were not introduced in the earlier trial.
The sole issue on appeal is whether it was reversible error to allow impeachment of appellant by evidence of the two prior felony convictions, both more than ten years old.
Section 609 of the Federal Rules of Evidence provides as follows:
In the version of the Federal Rules of Evidence adopted by the Supreme Court in 1972, Rule 609(b) was as follows:
The Advisory Committee note states:
Few statutes recognize a time limit on impeachment by evidence of conviction. However, practical considerations of fairness and relevancy demand that some boundary be recognized.
The rule was revised successively in the House, in the Senate, and in the Conference. 10 Moore's Federal Practice, ¶ [1.-11] at VI-120 (2d ed. 1976.)
The legislative history further demonstrates an intent that evidence of convictions more than ten years old should be admitted very rarely and only in exceptional circumstances. The House version of the rule, like the original version adopted by the Supreme Court, took the unequivocal position that evidence of convictions more than ten years could never be admitted for impeachment.
The Senate adopted a modified version of the House proposal, but included exacting standards for admission of prior convictions.
The Conference Committee adopted the Senate version but added the requirement for advance notice of intention to request the court to allow evidence of a conviction older than ten years.
An important purpose of Rule 609(b) is to avoid convicting criminal defendants as a result of prejudice caused by the cumulative effect of old criminal convictions. When stale convictions are offered for the purpose of impeaching a witness, they often shed little light on the present tendency of the witness towards truthfulness and veracity. In United States v. Harding, 525 F.2d 84, 89 (7th Cir. 1975), the court stated:
Under Rule 609(b), the district judge must make "an on-the-record finding based on specific facts and circumstances that the probative value of the evidence substantially outweighs the danger of unfair prejudice." United States v. Mahler, 579 F.2d 730, 734 (2d Cir. 1978).
In United States v. Mahone, 537 F.2d 922, 929 (7th Cir.), cert. denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976), the court set down the following test for the admission of prior felony convictions under Rule 609:
In United States v. Cox, 536 F.2d 65, 71 (5th Cir. 1976), the Fifth Circuit cited Rule 609 in holding that evidence of a fifteen year old conviction was inadmissible for purposes of impeachment. Judge Gewin said:
Accord, United States v. Shapiro, supra, 565 F.2d 479 (7th Cir. 1977).
In the present case the Government gave the notice required by the Rule. The district court stated the following basis for allowing admission of the two convictions more than ten years old:
Rule 609(b) creates, in effect, a rebuttable presumption that convictions over ten years old are more prejudicial than helpful and should be excluded. United States v. Johnson, supra, 542 F.2d at 234. As set forth in the legislative history quoted above, evidence of convictions more than ten years old will be admitted "very rarely and only in exceptional circumstances." In Johnson, a 16 year old felony conviction was found properly admitted under Rule 609(b) to impeach the defendant where that prior conviction directly contradicted the testimony of the defendant. We conclude that no such "exceptional circumstance" is presented by use of appellant's prior convictions in the instant case.
The previous trial of appellant, when the jury had no knowledge of his two old prior convictions, resulted in a deadlocked jury. At the trial involved in the present appeal, the Government was permitted to introduce evidence of appellant's two prior convictions because appellant's credibility was "essentially the whole case" and because the convictions were probative of that credibility. With the evidence of those two previous convictions before them, the members of the jury discredited the testimony of appellant and returned a guilty verdict.
We cannot agree that the probative value of a 21 year old burglary conviction or a 12 year old conviction for transporting a stolen motor vehicle substantially outweighs their prejudicial effect in the present case. Nor do we find any rare and exceptional circumstances that would justify the admission of the two stale convictions into evidence. Both convictions were remote in time and neither necessarily shed any light upon the credibility of appellant. We conclude that their admission into evidence in the present case outweighed their probative value and violated both the language and purpose of the rule.
The purpose of Rule 609(b) is to prevent the conviction of a defendant on the basis of his old prior criminal record, when evidence of that record is introduced ostensibly for the purpose of impeaching the defendant's credibility, but the stale convictions are not probative of credibility. Therefore, it is contrary to that purpose to permit the Government, after a previous mistrial, to bolster its case by evidence of stale convictions, thereby enabling the prosecution to obtain a conviction on the second trial.
The judgment of conviction is reversed and the case is remanded for a new trial.
ENGEL, Circuit Judge, dissenting.
I respectfully dissent. I would hold that Judge Siler's statement of his reasons for admitting the evidence of Sims' earlier convictions met at least the minimum requirements of Rule 609(b).
Since proof of Sims' prior conviction of a felony is an essential element of the crime under 18 U.S.C. § 1202(a)(1) (Appendix), the jury was necessarily possessed of this prejudicial information regardless of whether he testified. Likewise, we have held in our circuit that it is not improper for an indictment to charge or the government to prove in such cases that the defendant had been previously convicted of more than one felony. United States v. Burkhart, 545 F.2d 14 (6th Cir. 1976); United States v. Fields, 500 F.2d 69 (6th Cir.), cert. denied, 419 U.S. 1071, 95 S.Ct. 659, 42 L.Ed.2d 667 (1974). The government is also not obligated to accept a stipulation from the defendant in lieu of presenting proof of prior crimes to the jury. Burkhart, supra. Thus it is entirely possible that the government here might have included the other felonies in the indictment and thus have placed them before the jury in any event, without any compliance with Rule 609 being required.
Of course, the government did not do so here, nor do I suggest that it should have. I do suggest, however, that in prosecutions under Section 1202(a)(1), at least, the prejudicial impact of proof of prior convictions is considerably lessened because the jury already knows the defendant had a record. At the same time the value of the evidence to the jury in determining the credibility of the defendant as a witness is somewhat enhanced because a man with a more extensive record is much more likely to know it is unlawful to possess weapons and to guard against the danger. The case hung on whether the jury would believe or disbelieve Sims' story. In such circumstances, the jury should be possessed of as much information as is useful and permissible to assist it in the difficult task of assessing the defendant's credibility.
Although somewhat abbreviated in form, the trial judge's statement here reflects, in my judgment, a conscientious exercise of the discretion vested in him under Rule 609. I would affirm.
Under this formulation, a witness' entire past record of criminal convictions could be used for impeachment (provided the conviction met the standard of subdivision (a), if the witness had been most recently released from confinement, or the period of his parole or probation had expired, within ten years of the conviction.
The Committee amended the Rule to read in the text of the 1971 Advisory Committee version to provide that upon the expiration of ten years from the date of a conviction of a witness, or of his release from confinement for that offense, that conviction may no longer be used for impeachment. The Committee was of the view that after ten years following a person's release from confinement (or from the date of his conviction) the probative value of the conviction with respect to that person's credibility diminished to a point where it should no longer be admissible.
The Report of the Conference Committee stated:
The Conference adopts the Senate amendment with an amendment requiring notice by a party that he intends to request that the court allow him to use a conviction older than ten years. The Conferees anticipate that a written notice, in order to give the adversary a fair opportunity to contest the use of the evidence, will ordinarily include such information as the date of the conviction, the jurisdiction, and the offense or statute involved. In order to eliminate the possibility that the flexibility of this provision may impair the ability of a party-opponent to prepare for trial, the Conferees intend that the notice provision operate to avoid surprise.