Free Response to Motion - District Court of Delaware - Delaware

I Case 1 :07—cr—00026-SLR Document 25 Filed 1 1/06/2007 Page 1 of 3 `
. _ ( I IN THE UNITED STATES DISTRICT COURT
` . - FOR THE DISTRICT OF DELAWARE
UNITED STATES OF AMERICA, _ )
Plaintiff, I g
v. g Criminal Action No. 07-26-SLR
I EARL N. WALLACE, 3
l Defendant. g
I I . GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION IN LIMINE
- C Now COMES the United States of America, by and through its attorneys, Colm F.
I _` _ Connolly, United States Attorney for the District of Delaware, Shawn A. Weede, Assistant United
I States Attorney for the District of Delaware, and_Shannon T. Hanson, Assistant United States ‘
- Attorney for the District of Delaware, and responds to Defendant’s Motion in Limine (D.I. 24)- as
- - follows: l
n -_ I 1. The defendant seeks to exclude “al1references” to the defendant’s May 9, 2001
I I misdemeanor conviction from Maryland for possession of a handgun in a vehicle as improper ` .
· impeachment evidence under Federal Rule of Evidence (FRE) 609, and as unduly prejudicial under
·. Rule 403. (D.I. 24 at 1-2). The government does not contest the defendant’s Rule 609 argument, A
as it do es not intend to introduce evidence ofthe conviction in question under the scope of FRE 609. ,_
- However, it asserts that the defendant’s attempt to prohibit the government from introducing the . I
·- I - conviction "for any other purpose" is overly broad. @3.1. at 4). Indeed, evidence of the conviction i
I ` in question may become admissible under several rules of evidence_ should the defendant put this .
- U conduct at issue. I _ `
· I · · I 2. For example, a prior conviction would be admissible tmder Rules 402 and 403
. . in order to "contradict speciiic testimony” by the defendant, "as long as the evidence is relevant and _-
I . its probative value is not substantially outweighed by the danger of unfair prejudice? United States E
. . - v. Norton, 26 F.3d 240, 243 -44 (1S‘ Cir. 1994) (holding that impeachment by contradiction
.—is governed by Rules 402 and 403 and not 609). In- Neg, the government sought to introduce

n Case 1:07—cr—00026-SLR Document 25 Filed 11/06/2007 Page 2 of 3 ‘ - -
. evidence of a prior firearm conviction in order to contradict the defendant’s testimony that he never l
` 1 I -"possessed a gun." gl, at 243-44. The First Circuit affirmed the district court’s admission of the I
_ conviction since it was "highly relevant to contradict [the defendant’s] specific misleading .
_ assertion," and was not unduly prejudicial since the defendant himself had introduced the issue into
the trial. Q at 244—45; s_g=:_ @ United States v. Lopez, 979 F.2d 1024, .1034 (5* Cir. 1992)
_ (affirming admission of prior conviction for marijuana possession to contradict defendant’s ‘
testimony that he did not recognize marijuana). _ . ‘ ‘
. l 3. By way of further example, the defendant could put his conviction at issue by
I I having witnesses testify as to his reputation in the community for certain qualities, such as being a
I ` - law-abiding citizen. If this were to occur, the Court may certainly permit the government to cross- I
. l examine those witnesses with regard to the conviction in question according to Rules 404(a)(l) and
_- _ 405(a). Qgg United States v. Lundy, 416 F. Supp. 2d 325, 336 (E.D. Pa. 2005) (concluding that
._ . when the defendant chooses the "perilous path" of soliciting opinion or reputation testimony by
I n character witnesses on his behalf “he opens the door for the prosecution to . . . challenge the
I I defendant’s character witnesses by cross-examining them about their knowledge of relevant specific
I I instances of the defendant’s conduct.”) (quoting United States v. Monteleone, 77 F.3d 1086, 1089 _
· (8* Cir. 1996)); FRE 404(a)(l); FRE 405(a)._ ` I
4. The government stipulates that it will not seek to introduce the defendant’s i
. · conviction under Rule 609; further, at this stage of the proceedings, it does not intend to introduce
_ evidence of the conviction in question pursuant to another rule of evidence. However, the
` ` I government cannot predict whether or not the defendant will "open the door" to this issue at trial. I 7
. _- _ Accordingly, the government respectfully asserts that the defendant’s motion should be granted as (
_. I I to`Rule 609 only, and otherwise revisited at trial, subject to what evidence, if any, is _elicited by the
l defendant. ‘ , in

. - Case 1 :07—cr—00026-SLR Document 25 Filed 1 1/06/2007 Page 3 of 3
I I WHEREFORE, for the foregoing reasons, the government respectfullyrequests that
the Court grant the defendant’s motion with regard to Federal Rule of Evidence 609 only, and deny
. the remainder of his motion without prejudice, subject to reconsideration at trial.
‘ . ` COLM IF. CONNOLLY I I I
‘ _ United States Attorney
I I I BY: /s/ ShawnIA. Weede ` .
` - A Shawn A. Weede -
. . Shannon T. Hanson ‘ _
_ ‘ Assistant United States Attorneys ‘
I I Dated: November 6, 2007 _