1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES ATTORNEY'S OFFICE LOS ORANGES DIVISION By: George Olivos Assistant United States Attorney 151 State Street, 10th Floor Sunshine, California 90003 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF CALIFORNIA UNITED STATES v. DR. DION FENDANT, Defendant CASE NO. MHP CR-18-0112 PEOPLE'S MOTION IN LIMINE NO. 1 TO PRECLUDE IMPEACHMENT BY CONVICTION OF PEOPLE'S WITNESS OFFICER TANNER BLAKE Action Filed: January 3, 2018 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION The only connection of Reserve Officer Tanner Blake ("Officer Blake") to this proceeding is that he observed surveillance footage from the defendant's medical office that shows the defendant sexually assaulting the victim. The defense has sought to impeach Officer Blake's credibility as a testifying witness by introducing an eleven-year old conviction for domestic assault. This is improper impeachment under Federal Rule of Evidence ("Rule") 609, and should be excluded. ARGUMENT I. The Conviction Is Untimely and Procedurally Improper Under Rule 609, a conviction that is more than 10 years old is presumptively inadmissible. Evidence of the conviction is admissible only if: (1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use. Rule 609(b). Here, Officer Blake's eleven-year old domestic violence conviction meets neither of these criteria. First, the probative value does not substantially outweigh the prejudicial effect, as required under Rule 609(b)(1). The probative value of the conviction is low. A domestic assault charge is a crime of violence, not dishonesty, so it says little about a testifying witness' credibility. Domestic assault is typically a crime of passion, done when one is not considering the consequences, which is the opposite of a witness taking the oath under penalty of perjury in court, where the witness is well aware of the legal ramifications of violating the oath. Moreover, the conviction was a long time ago, and Officer Blake has obviously been rehabilitated since then, or else the Los Oranges Police Department would not have permitted him to become a reserve officer three years ago. (See Transcript of Trial Testimony at 2:21.) By way of analogy, even a more recent conviction cannot be used to impeach credibility where it has been the subject of "a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 crime punishable by death or by imprisonment for more than one year." Rule 609(c)(1). Although there is no evidence in the record that Officer Blake's conviction was the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure, a police department's finding that the conviction did not disqualify him from serving as a peace officer should be an indication that the conviction has little probity in the evaluation of Officer Blake's credibility as a witness in the current trial. As for the unfair prejudice, it is high, and so is clearly not substantially outweighed by the probative value. The crime of domestic assault is a crime of violence against someone with whom the perpetrator has a familial or romantic relationship. In this regard, it is somewhat similar to the crime of sexual assault with which the defendant is charged. Thus, raising it may have the potential to confuse the issues in the minds of the jurors. Moreover, Officer Blake is a tangential witness whose only involvement was viewing surveillance footage. Inquiry into an eleven-year old conviction will overshadow the limited testimony the witness has to offer on the substance of the case, and so runs the risk once again of confusing the issues in the minds of the jurors. Second, the defense has not given the People "reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use," as required by Rule 609(b)(2). Indeed, no written notice of intent to use the conviction for impeachment was provided, let alone reasonable notice. The first the People heard of this conviction or of the defense's intent to use it to impeach was in open court, when the witness was asked about it on cross-examination. This failure on the part of the defense is itself fatal to the conviction's admissibility for impeachment purposes. II. The Conviction Is Substantively Improper to Use for Impeachment Even assuming, arguendo, that the defense could get over the ten-year hurdle, the conviction is inappropriate for use as impeachment on the merits. Under Rule 609(a), only a conviction involving a "dishonest act or false statement" is admissible without regard to a balancing of prejudice and probity. Domestic assault does not require a showing of either dishonest act or false statement. Accordingly, the probative value must be balanced against the prejudice. Specifically, because this is a criminal case, the conviction can be admitted to impeach credibility only if the probative value of the evidence outweighs its prejudicial effect. While this is 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 not a stringent a standard as the reverse-Rule 403 standard for convictions more than ten years old, it is still more stringent than the standard Rule 403 balancing test. For the same reasons that the balancing test of Rule 609(b) was not met as discussed above in Part I, the applicable balancing test under 609(a) is not met either. The probative value of the conviction is low given its age, limited connection to veracity, and the evidence of subsequent rehabilitation. Its potential for unfair prejudice is high given the likelihood that it will confuse the issue or mislead the jury. Furthermore, this is a federal criminal trial, and a domestic assault conviction, absent special jurisdictional circumstances, is invariably a matter of state law concern. It would be inappropriate to impeach a federal witness with a state court conviction. CONCLUSION For the foregoing reasons, the People respectfully request that the defense be precluded from inquiring as to Officer Blake's prior conviction; that Officer Blake be excused from answering any such question; and that the jury be instructed to disregard any mention of such conviction already made. DATED: ______, 20__ UNITED STATES ATTORNEY'S OFFICE LOS ORANGES DIVISION By:_/s/ George Olivos____________________________ George Olivos Assistant United States Attorney

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