Case o' The Week: Defendant talks, or Ninth balks - Prigge and requirement to testify to preserve FRE 404(b) objections

   What’s the only way to challenge the district court’s improper in limine ruling on the use of a prior conviction at trial?

  Take the stand, suffer the government’s improper use of a prior conviction, and pray the appellate court sorts it out if convicted.

Hon. Judge Richard Tallman

United States v. Prigge, 2016 WL 4056066 (9th Cir. July 29, 2016), decision available here.

Players:  Decision by Judge Tallman, joined by Judge Graber and SD NY Judge Rakoff.

Facts: Prigge conspired with others to move cocaine from Central America to Chicago. [Ed. Note: Westlaw (annoyingly) failed to add * cites to this short opinion. Thus, except for a footnote, the page cites are omitted in this Case ‘o The Week memo]. 

  Before trial, the government gave notice of its intent to use a very old state drug-trafficking conviction at trial under FRE 404(b), if Prigge testified. The defense moved to exclude use of this prior at trial for any purpose, because of its age. Prigge argued that the timing requirements and balancing test of FRE 609(b) apply to the use of a conviction under FRE 404(b), if the prior is more than ten years old. 

  The district court refused to rule on Prigge’s motion to exclude until trial. Prigge didn’t testify and was convicted.

                                                  

Issue(s): “Terance Taylor Prigge appeals his conviction by jury trial for various drug trafficking and money laundering offenses. Prigge asks that we reverse his conviction because of . . . the district court’s failure in advance of trial to preclude the government from impeaching Prigge with his fourteen-year-old prior conviction if he testified.”

Held: “We decline to reach this argument and instead hold that Prigge's claim is barred on appeal by Luce v. United States, 469 U.S. 38 (1984).” Id. (footnote omitted). 

  “We hold that Prigge's first assignment of error is unreviewable on appeal because he did not testify.” “Here, Prigge's prior conviction was never introduced at trial because he chose not to testify. Thus, we hold that Luce bars his claim on appeal.”

Of Note: Prigge is a new (and disappointing) rule in the Ninth: to challenge a FRE 404(b) ruling on appeal, the defendant has to testify. It is an extension of the Supreme Court’s similar rule at to FRE 609 evidence in Luce v. United States, 469 U.S. 38 (1984). 

  In Luce, Justices Brennan and Marshall joined in the Court’s holding, but specifically limited the decision to FRE 609. 469 U.S. 43-44 (Brennan and Marshall, JJ, concurring). The Ninth here rejects the two Justices’ narrow reading of Luce, and expands the “testify to appeal” rule in the Ninth past FRE 609 and to FRE 404(b).  

How to Use: Although the Court claimed it wasn’t reaching Prigge’s main argument, it then went on to explain that Prigge was “confused about the relationship between Rule 404(b) and Rule 609(b).” Id. at *1 & n.3. Judge Tallman rejects FRE 609(b)’s “onerous standards for admission” for convictions admitted for non-character purposes under FRE 404(b). Id. 

  Do you understand the limitation on the admission of a duty old prior for “non-character purposes under FRE404(b)?” Neither will the jury, who just sees a convicted felon charged with another crime in your trial. Take a hard look at footnote 3 when worrying about the admission of old priors at trial.  

                                               

For Further Reading: Prigge expands the use of prior convictions by forcing the defendant to go to trial and testify to preserve an objection over their admission under FRE 404(b). 

  The expanded use of priors against defendants in trial, however, runs directly contrary to increasing concerns about the reliability of priors as indicators of culpability (and particularly raises problems given our rising awareness of racial profiling). 

  For a very compelling analysis challenging the impeachment of defendants by the use of their prior convictions under FRE 609, see Anna Roberts, Impeachment by Unreliable Conviction, 55 B.C.L. Rev. 563 (2014), available here.

Image of the Honorable Richard Tallman from http://www.uscourts.gov/news/2012/10/09/emergency-preparedness-summit-shares-lessons-learned

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

.