U.S. v. Osazuwa, No. 08-50244 (5-7-09). This is an interesting opinion concerning the interplay between FRE 608 (specific instances of untruthfulness) and FRE 609 (prior convictions). That is, can the facts underlying 609 be used as instances in 608. The 9th (Graber joined by Pregerson and Wardlaw) hold "no." The case involved an inmate, on the cusp of release, supposedly getting into a fight with a guard. The guard said the defendant picked the fight after being ordered to change clothes (from BOP green to transitional khaki (i.e. more like GAP?). The defendant said the guard came in with an attitude and was so angry that he lost his balance, grabbed defendant's shirt, and both men fell. There were no other witnesses. At trial, the prosecutor used the facts underlying the defendant's 2003 bank fraud conviction to impeach him about lying for caused a scuffle. The district court let it in under 608. The 9th weighed the two constructions, and concluded that it would be unfair to restrict cross under 609, only to let it in under 608. The 5th, 8th and 10th Circuits also hold that 608 only applies to specific instances not resulting in a felony conviction. Thus, the 9th holds "that Rule 608(b) permits impeachment only by specific acts that have not resulted in a criminal conviction. Evidence relating to impeachment by way of criminal conviction is treated exclusively under Rule 609...." Under Rule 609, the details should have been precluded, and may not include collateral details of the crime of conviction. A defendant does not "open the door" by providing a truthful answer to a direct question under 609. Given the issues of credibility, the error was prejudicial and not harmless.
Congrats to AFPD Elizabeth Newman, C.D. Ca (Los Angeles).