UNITED STATES v. HOLMES (2024)

MEMORANDUM

The Government has filed motions in limine seeking pre-trial rulings under Federal Rule of Evidence 609 as to the admissibility of impeachment evidence for Defendant Brenton Holmes and three of the Government's witnesses. Playing offense, the Government argues that it should be permitted to cross examine the defendant with his prior criminal convictions should he choose to testify at trial.¹ Playing defense, the Government contends that similar impeachment of its witnesses through prior convictions would be improper.² For the reasons that follow, I conclude that Rule 609 bars reference to any of the prior convictions, on both sides of the case.

I. Overview of Motions

The Government seeks to make use of Defendant Holmes’ prior convictions, which it recounts as follows:

1. Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) (April 2009)

2. Using and carrying a sawed-off shotgun during a crime of violence in violation of 18 U.S.C. § 924(c)(1) (April 2009)

ECF 127 at 3.

Conversely, the Government seeks to exclude reference to the prior felony convictions of potential witness Harold Givens, which they list as follows:

1. Drug possession (September 1994)

2. Retail theft (November 1996)

3. Robbery (February 1998)

4. Retail theft (June 1998)

5. Purchase and possession of a controlled substance (July 2006)

ECF 152 at 8-9.

II. Analysis

A. Impeachment of Defendant Holmes

Federal Rule of Evidence 609(a) permits evidence of a prior felony conviction offered to impeach the credibility of a testifying witness.³ If, however, the witness is testifying as a criminal defendant, their prior felony convictions are only admissible “if the probative value of the evidence outweighs its prejudicial effect to that defendant.” Fed. R. Evid. 609(a)(1)(B). The Government's motion cited to precedent from other circuits suggesting that there is a presumption of inclusion that favors allowing such impeachment. See ECF 127 at 3. In doing so, it ignored an important decision from the Third Circuit which describes this portion of the Rule as “a heightened balancing test and a reversal of the standard for admission under Rule 403,” creating “a predisposition toward exclusion.” United States v. Caldwell, 760 F.3d 267, 286 (3d Cir. 2014) (citation omitted).

Under Caldwell, a trial court must consider four factors when weighing the probative value against the prejudicial effect under Rule 609(a)(1)(B): “(1) the kind of crime involved; (2) when the conviction occurred; (3) the importance of the defendant's testimony to the case; and (4) the importance of the credibility of the defendant.” 760 F.3d at 286 (citing Gov't of Virgin Islands v. Bedford, 671 F.2d 758, 761 n.4 (3d Cir. 1982)). Weighing these four factors, I conclude that the Government has not met its burden to show that the probative value of admitting either of Holmes’ prior convictions outweighs the risk of unfair prejudice to him.

The Kind of Crime Involved

To evaluate the first factor—the kind of crime involved in the prior conviction—courts in this circuit consider “both the impeachment value of the prior conviction as well as its similarity to the charged crime.” Caldwell, 760 F.3d at 286. The impeachment value relates to the probative value of the crime in testing the witness’ credibility. Id. On the one hand, the Third Circuit has held that any felony conviction is probative of a witness's credibility because Rule 609 is premised on the notion that “one who has transgressed society's norms by committing a felony is less likely than most to be deterred from lying under oath.” Walden v. Georgia-Pac. Corp., 126 F.3d 506, 523 (3d Cir. 1997) (citations omitted). But this stands in tension with its later, fact-specific decisions Walker and Johnson, where it refused to find crimen falsi elements in convictions for robbery and theft. Walker v. Horn, 385 F.3d 321, 334 (3d Cir. 2004); United States v. Johnson, 388 F.3d 96, 100-03 (3d Cir. 2004). Here, there is no inherently strong or logical connection between Holmes’ prior convictions—robbery and a firearms offense—and his veracity as a witness. Indeed, it is possible to commit these crimes brazenly, with no deception, despite the seriousness of the offenses. Moreover, the Government has omitted any specific factual details about these convictions to demonstrate how they would bear on Holmes’ willingness to testify truthfully. Weighing these considerations, I ascribe only minimal probative value to these convictions. See United States v. Gillard, No. 23-26, 2024 WL 247054, at *9, 16-17 (E.D. Pa. Jan. 23, 2024) (Gallagher, J.) (finding insufficient probative value to admit prior felony robbery and firearm convictions under Rule 906(a)(1)(B) due in part to a lack of specific details from the Government).

With respect to the similarity of the past convictions to the charged crime, “the balance tilts further toward exclusion as the offered impeachment evidence becomes more similar to the crime for which the defendant is being tried.” Caldwell, 760 F.3d at 286. Prior convictions for similar crimes should be admitted “sparingly if at all” because of the risk that the jury will draw an impermissible inference. Id. (citations omitted). This factor carries great weight in the present case. Holmes is currently charged with Hobbs Act robbery and firearms offenses. These charges are the same or closely related to his prior felony convictions. Allowing such evidence creates a great risk that a jury will draw the impermissible inference that Holmes has a propensity to commit robberies and firearms offenses, rather than considering it as evidence only relevant to his credibility as a witness.

When the Convictions Occurred

The remaining factors do not reveal enough probative weight to overcome the risk of prejudice. As to the second factor—when the conviction occurred—the Government notes that Holmes was released from prison for his prior convictions within the last ten years, allowing it to avoid the heightened standard of Rule 609(b). ECF 127 at 7-8. But beyond this, the Government offers nothing to suggest that his 2009 convictions have particular probative value. The probative value of the age of a conviction depends in large part on whether the circumstances “suggest a changed character.” Caldwell, 760 F.3d at 287 (citation omitted). The fact that Holmes was released from confinement within the last few years supports some inference that his character has not changed, but does not weigh heavily enough to tilt the balance back toward inclusion given the risk of inviting the jury to find propensity.

Importance of the Defendant's Testimony

The third factor considers Holmes’ need to testify on his own behalf. If it is apparent to the trial court that a defendant's testimony is “necessary” to rebut strong prosecution evidence, the balance tilts toward excluding the prior conviction. Id. at 287-88. Here, the Government itself relies on the proposition that Holmes’ testimony “will be a central issue in the case,” and is “obviously of great significance.” ECF 127 at 8. Logically, however, if such testimony is as important as the Government suggests, that surely weighs in favor of excluding the evidence so as not to prevent the accused from testifying in his own defense.

Importance of the Defendant's Credibility

The fourth factor considers the importance of the Defendant's credibility. If a defendant's credibility as to non-trivial matters is a central issue in his defense, that weighs in favor of inclusion of the prior conviction. Caldwell, 760 F.3d at 288. The Government argues that it would be unfair to allow Holmes to testify without allowing evidence of his prior convictions “which cast doubt on his version of the facts.” ECF 127 at 9. While this factor may weigh in favor of inclusion, the Third Circuit in Caldwell acknowledged the tension between the third and fourth factors, noting that some commentators believe the factors essentially “cancel each other out,” thus preventing “either factor from impacting the overall impeachment calculus.” Id. at 288 n.15 (citing Jeffrey Bellin, Circumventing Congress: How the Federal Courts Opened the Door to Impeaching Criminal Defendants with Prior Convictions, 42 U.C. Davis L. Rev. 289, 318 (2008)). Such appears to be the case here. If the credibility of Holmes’ testimony is a central issue of the trial, thereby weighing in favor of including his prior convictions, then his need to testify on his own behalf appears to be of equal if not greater significance, thereby weighing in favor of excluding the convictions. I ascribe little weight to these final factors as a result.

Overall, the most important factor here is the problem of propensity given the similarity between Holmes’ prior robbery and firearms convictions and the charged offenses. Considering this, I conclude that the Government has not met its burden to demonstrate how the high risk of prejudice presented by these prior convictions is overcome by any significant probative value for purposes of impeachment. Accordingly, I will deny the Government's motion without prejudice as to Defendant Holmes, which the Government may reassert if new or extraordinary circumstances arise.

B. Impeaching Character Witnesses

The Government also seeks a ruling that it may use Holmes’ prior convictions to cross-examine any character witness that Holmes presents on his own behalf. Rule 404(a)(2)(A) allows a criminal defendant to offer evidence of their own good conduct, and Rule 405(a) permits such evidence to come in the form of character witness testimony. But, the Government notes, when character witness testimony is offered, “the court may allow an inquiry into relevant specific instances of the [defendant's] conduct” on cross-examination. Fed. R. Evid. 405(a). I acknowledge that I have “broad discretion regarding the cross-examination of character witnesses.” United States v. Boone, 279 F.3d 163, 175 (3d Cir. 2002).

The Government does not, however, explain why it should be entitled to ask character witnesses about Holmes’ prior felony convictions even if those convictions are unduly prejudicial for purposes of Rule 609(a). I have previously addressed the risks of allowing such evidence through the backdoor of cross-examination of character witnesses. United States v. Church, No. 14-323, 2016 WL 613185, at *3 (E.D. Pa. Feb. 16, 2016); United States v. Church, No. 14-520, 2017 WL 2180284, at *2 (E.D. Pa. May 18, 2017); see also United States v. Lundy, 416 F. Supp. 2d 325, 337 (E.D. Pa. 2005) (excluding cross-examination of a character witness on the defendant's prior conviction as overly prejudicial under Rule 403). Absent some extraordinary circumstance not apparent at this point, I do not see a basis for permitting such cross-examination.

C. Impeaching Potential Witness Harold Givens

The Government further seeks to exclude the prior felony convictions of Harold Givens, a potential witness in the case. Givens apparently rented a room in his home to Defendant Holmes and another potential witness, and may testify that he found empty boxes in his home from merchandise allegedly stolen by Holmes and others. ECF 152 at 5. According to Holmes, Givens will “attempt to convince the jury that he was not involved in the robberies and that he should be believed when he lays the blame on defendant Holmes.” ECF 158 at 1-2.

Givens has five prior felony convictions for theft, robbery, and drug offenses. Because these convictions and any resultant confinement occurred more than ten years ago, evidence of the convictions is only admissible if “its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.” Fed. R. Evid. 609(b)(1). Under this heightened Rule 403 balancing standard, convictions older than ten years are “presumptively excluded,” Caldwell, 760 F.3d at 287, and “will be admitted very rarely and only in exceptional circumstances,” United States v. Shannon, 766 F.3d 346, 352 n.9 (3d Cir. 2014) (citing the Advisory Committee Notes).

No such “exceptional circumstances” have been offered here to admit Givens’ prior convictions. As an initial matter, with respect to the importance of the evidence, it is not clear how implicating Givens would necessarily exculpate Holmes. Beyond that, whatever the probative value of these prior convictions, it is greatly diminished by the length of time that has since passed: more than 17 years since Givens’ most recent conviction and more than 25 years since his last conviction for theft or robbery. Even accepting the defense's argument that there is increased probative value because of the number of convictions—evidencing Givens’ willingness to repeatedly violate the law—the defense has not offered any specific details of Givens’ prior convictions that would enhance their probative value enough to satisfy Rule 609(b)’s high bar. The lack of detail has particular relevance in light of the Third Circuit's conclusion that robbery and theft are not intrinsically crimen falsi offenses. If, as the evidence proceeds, there is some significant nexus between Givens and the alleged crimes not apparent at this juncture, the defense can seek reconsideration.

III. Conclusion

For the reasons stated above, the Government's motions in limine (ECF 126, 127, 128, & 152) will be granted in part and denied in part. The Government's motions are denied as moot as to Defendants McNeil and McKay (ECF 126 & 128), denied without prejudice as to the admissibility of Defendant Holmes’ prior felony convictions (ECF 127), and granted as to the admissibility of the prior convictions of potential witnesses’ Harold Givens, Alea Knox, and Edmund Boyle (ECF 152). An appropriate order follows.

FOOTNOTES

1.   The Government also moved to admit the prior convictions of Defendants Demon McNeil and Lawrence McKay, but they have since pled guilty, rendering these motions moot. ECF 127.

2.   The Government moves to preclude the prior criminal histories of three potential witnesses: Harold Givens, Alea Knox, and Edmund Boyle. ECF 152. The defense concedes the issue as to Knox and Boyle.

3.   Although Rule 609(a)(2) requires the admission of convictions for crimes involving a dishonest act or false statement, regardless of whether they are felonies, the Government rightly concedes that the convictions at issue here fall outside the crimen falsi category. See Walker v. Horn, 385 F.3d 321, 334 (3d Cir. 2004) (excluding robbery from Rule 609(a)(2)); United States v. Johnson, 388 F.3d 96, 100-03 (3d Cir. 2004) (excluding theft). The Government also correctly notes that Holmes’ convictions do not fall under Rule 609(b), because he was released from confinement for these convictions within the last ten years.

Gerald Austin McHugh, United States District Judge