UNITED ST ATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Case No. 1:21-cr-12-RCL

ZACHARY JACKSON,

Defendant.

MEMORANDUM OPINION & ORDER

Defendant Zachary Jackson is charged with unlawful possession of a firearm by a person

convicted of a crime punishable by imprisonment for a term exceeding one year. ECF No. 6.

Before lhe Cuurl are lhe guvernmenl's motion in limine to admit evidence pursuanl to Federal Rule

of Evidence 609, Gov. Mot., ECF No. 20; and Jackson's response to the government's motion,

Def.'s Opp'n, ECF No. 27. The Court held a motion hearing on November 29, 2021. 11/29/2021

Min. Entry. For the reasons stated below, the Court will GRANT IN PART and DENY IN PART

the government's motion.

The government specifically requests that, if Jackson elects to testify at trial, it be permitted

to impeach Jackson's credibility with two of his prior convictions. Gov. Mot. 1. Both are

convictions from D.C. Superior Court. Id. at 2. The first is a 2017 conviction for robbery and

unlawful possession of a firearm by a convicted felon. Id. at 4. The second is a 20 I 6 conviction

for attempted robbery. Id.

Jackson "does not object to the introductions of these convictions should [he] take the

stand, provided the government provide a certified copy of the stated conviction." Def.'s Opp'n

2. But he does raise two arguments in response to the government's motion. First, Jackson states

that he would object to the introduction of his prior conviction for unlawful possession because

1 "introduction of that conviction would be more prejudicial than probative." Def.' s Resp. 2. He

argues that "a conviction of virtually the same charge, particularly one that involves a conviction

based upon an unchangeable condition precedent (felony conviction), would be unfairly

prejudicial." Id. at 3. Second, Jackson argues that because the parties have entered into a

stipulation that Jackson has a prior felony conviction "as required by the elements" of his charged

offense, the description of his convictions "is not a fact in dispute at trial and [is] therefore only

prejudicial." Id.

The government's motion is ripe for review.

* * *

Rule 609 permits the "admission of a defendant's prior convictions for purposes of

impeachment, so long as the 'crime ... was punishable by death or by imprisonment for more than

one year' (that is, it was a felony), and 'the probative value of the evidence outweighs its

prejudicial effect."' United States v. Ford,.No. 15-cr-25 (PLF),

, at *7 (D.D.C.

Jan. 21, 2016) (quoting United States v. Moore,

(D.D.C. 2014)). It is the

government's burden to "show that the probative value of a prior conviction outweighs the

prejudice to the defendant." United States v. Lipscomb,

(D.C. Cir. 1983) (en

bane). Courts in this district consider the following nonexhaustive factors in their balancing

analysis: "(1) the kind of crime involved; (2) when the conviction occurred; (3) the importance of

the witness'[s] testimony to the case; (4) the importance of the credibility of the defendant; and (5)

generally, the impeachment value of the prior crime." United States v. Pettiford,

(D.D.C. 2006) (internal quotation marks omitted).

2 Jackson's first objection focuses on the risk of unfair prejudice from introducing his prior

firearm conviction. 1 As Jackson identifies, both this case and his 201 7 conviction involve unlawful

firearm possession. It is widely recognized that the balance tilts further toward exclusion when

proffered impeachment evidence is similar to the crime for which the defendant is being tried. See,

e.g., 28 Charles Alan Wright & Arthur R. Miller, Federal . Practice and Procedure§ . 6134 (2d ed.)

("[T]he danger of unfair- prejudice is enhanced if the witness is the accused and the crime was

similar to the crime now charged, since this increases the risk that the jury will draw an

impermissible inference under Rule 404(a)."). As the Fourth Circuit has explained, "[t]he D]ury,

despite limiting instructions, can hardly avoid drawing the inference that the past conviction

suggests some probability that defendant committed the similar offense for which he is currently

charged." United States v. Sanders,

(4th Cir. 1992) (quoting United States

v. Beahm,

(4th Cir. 1981)). Thus, prior convictions for the same or similar

crimes are admitted for impeachment purposes only "sparingly." Id.; see, e.g., United States v.

Caldwell,

(3d Cir. 2014).

With this potential prejudice in mind, the Court turns to the remaining factors to evaluate

the evidence's probative value. The D.C. Circuit has recognized that "all felony convictions less

than 10 years old have some probative value on the issue of credibility." Lipscomb,

. But the act of unlawfully possessing a firearm is not strongly probative of credibility. See

(explaining crimes involving "deception or stealth" or even "conscious disregard

1 Jackson purports to challenge the admission of this conviction under Rule 403 while supposedly waiving a Rule 609 objection. But Rule 609 has its own balancing test that is more stringent than Rule 403-that is, it is the government's burden to show that the "probative value of the evidence outweighs its prejudicial effect." Fed. R. Civ. P. 609(a)(l)(B); see, .e.g., Lipscomb,

-63; In re Rail Freight Fuel Surcharge Antitrust Litig.,

, 18-19 (D.D.C. 2021) (explaining differences in 609(a)(l )(B) and 403 balancing tests). Rule 403 instead permits the Court to "exclude relevant evidence if its probative value is substantially outweighed" by unfair prejudice. Fed. R. Civ. P. 403. Accordingly, the Court will consider Jackson's prejudice-focused arguments under the Rule 609 balancing test.

3 for the rights of others" are·more probative of credibility than "weapons possession"). And while

a defendant's credibility matters, the government has represented in its filings and hearings that in

addition to the testimony of the several officers involved in Jackson's arrest, it might also introduce

body-worn camera footage and DNA evidence. Thus, the Court finds that, on balance, the

probative value of defendant's firearm conviction does not outweigh its significant prejudicial

effect.

The Court turns next to Jackson's argument that, because the parties have stipulated that

Jackson has a prior felony conviction, the description of his convictions is "not a fact in dispute at

trial and therefore only prejudicial." Def. 's Opp'n 3. The Court is not persuaded. To be sure, the

Supreme Court in Old Chiefv. United States held that a defendant has the right to admit or stipulate

to the fact of a prior felony conviction for purposes of proving felon status.

(1997). In Old Chief, there was "no cognizable difference" between the proof the government

sought to present-a document reflecting the prior conviction-and the defendant's stipulation to

felony status.

Thus, the Court held that the evidence should be excluded under Rule 403.

But Jackson's argument goes too far. See, e.g., United States v. Smith,

, 687-

88 (7th Cir. 1997) ("[I]n Old Chief, the prior conviction was not used for impeachment purposes

under Fed. R. Evid. 609; therefore, Old Chief does not apply."); cf Old Chief,

n.2

("While it is true that prior-offense evidence may in a proper case be admissible for impeachment,

even if for no other purpose, Fed. R[.] Evid. 609, petitioner did not testify at trial; [thus,] there was

no justification for admitting the evidence for impeachment purposes."). The D.C. Circuit has

recognized the qualitative differences between stipulations and the proffered proof about prior

criminal activity that has "legitimate probative force with respect to matters beyond those

encompassed in [the] proposed stipulation." United States v. Crowder,

(D.C.

4 Cir. 1998) (analyzing Old Chief in a Rule 404(b) case). 2 And the "familiar, standard rule" is that

a "criminal defendant may not stipulate or admit his way out of the full evidentiary force of the

case as the government chooses to present it."

at 1207 (quoting Old Chief,

-

87). Here, Jackson's prior convictions for robbery and attempted robbery may "indicate a

conscious disregard for the rights of others"-which is probative of his credibility if he testifies.

Lipscomb,

. Thus, there is a "cognizable difference" between Jackson's

stipulation and the description of these felonies. Old Chief,

. Additionally, these

particular crimes-if sanitized of the references to firearms--do not implicate the same risks of

substantial prejudice that Jackson's firearm conviction carries. On balance, the Court finds that

the probative value of the robbery and attempt convictions on Jackson's credibility does outweigh

their prejudicial effect on the issue of credibility. 3

Accordingly, it is hereby

ORDERED that the government's motion [20] is GRANTED IN PART and DENIED

IN PART; it is further

ORDERED that the government may cross-examme Jackson-should he choose to

testify-about the fact that he is a convicted felon who was previously sentenced in 201 7 and 2016

for robbery and attempted robbery, respectively, but the Government may not elicit testimony or

seek to introduce any details about Jackson's firearm conviction; it is further

2 The Court does agree with Jackson 'that, in light of the stipulation, providing the jury with the details of his convictions to prove felony status does not survive the Rule 403 balancing test. See, e.g., Old Chief,

; United States v. Coleman,

(D.C. Cir. 2009). 3 The Court will give an appropriate limiting instruction to the jury.

5 ORDERED that the government may; of course, introduce redacted, certified copies of

Jackson's convictions for robbery and attempted robbery ifhe denies his convictions on the stand;

it is further

ORDERED that the government must redact all references to Jackson's firearm conviction

or_firearm use in conjunction with his 2017 sentence before seeking to introduce exhibits and show

them to the Court before publishing to the jury.

IT IS SO ORDERED.

Date: - -- - - - - - - Royce C. Lamberth United States District Judge

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