UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA v. Criminal Action No. 23-116 (JDB) NDUBUISI JOSEPH OKAFOR, Defendant.

MEMORANDUM OPINION & ORDER

This is a drug-distribution prosecution of Dr. Ndubuisi Okafor. Before the Court is the

government’s motion to preclude the defense from impeaching a government witness with

evidence of the witness’s prior convictions. See U.S.’s Mot. in Limine to Preclude the Intro. of

Gov’t Witness D.E.’s Prior Convictions [ECF No. 112-4] (“Mot.”). Okafor has not responded in

writing but put his opposition and the reasons therefor on the record at trial today, March 13, 2025,

outside the presence of the jury.

The government intends to put on the stand D.E., a witness with five prior criminal

convictions, all more than ten years old. See id. at 1–2. Of these, Dr. Okafor wishes to use two to

impeach D.E.: a 1996 Virginia conviction for aggravated sexual battery and a 2010 West Virginia

conviction for failure to register as a sex offender.

Federal Rule of Evidence 609 governs the impeachment of “a witness’s character for

truthfulness by evidence of a criminal conviction.” Fed. R. Evid. 609(a). Under that rule, evidence

of a felony conviction less than ten years old “must be admitted” unless its probative value is

substantially outweighed by unfair prejudice. Fed. R. Evid. 609(a)(1)(A). And for convictions

during that same time period, admission is mandatory (without any balancing test) if “the court

can readily determine that establishing the elements of the crime required proving—or the

witness’s admitting—a dishonest act or false statement.” Fed. R. Evid. 609(a)(2). But where 1 “more than 10 years have passed since the witness’s conviction or release from confinement for it,

whichever is later,” the presumption flips, such that impeachment is appropriate “only if” the

evidence’s “probative value, supported by specific facts and circumstances, substantially

outweighs its prejudicial effect.” Fed. R. Evid. 609(b)(1). Because the rule’s purpose is to permit

attacks on a witness’s character for truthfulness, the touchstone for probativeness is a lack of

veracity: a conviction that demonstrates the witness’s tendency to lie is significantly more

probative than one that does not. See United States v. Crawford,

(D.C. Cir.

1979).

The nearly 30-year-old conviction for aggravated sexual battery readily fails Rule 609’s

test. Its vintage renders it quite stale. And because sexual battery (however reprehensible) does

not involve a dishonest act or false statement, it bears little if at all on D.E.’s honesty. See

Bradshaw v. Fletcher, Civ. A. No. 19-428 (BKS),

, at *3 (N.D.N.Y. Jan. 12, 2024)

(“Crimes of sexual violence . . . lack probative value as to honesty or veracity.”). The defense

therefore may not impeach D.E. using the 1996 conviction.

The 2010 conviction is a closer call. It too falls beyond the 10-year line, but not so

dramatically. And unlike sexual battery, the failure to register as a sex offender might sometimes

involve a false statement, as one way the West Virginia statute is violated is by the knowing

provision of “materially false information” by somebody required to register as a sex offender.

(b) (2006). But the law is equally violated by the simple failure to act, without

any false statement—by the “knowing[] fail[ure] to register” or “to provide a change in any

required information.”

And the simple failure to comply with a legal requirement is not itself

untruthful; if it were, any crime would be untruthful. Accordingly, courts have generally found

that “failure to register as a sex offender does not require . . . a dishonest act.” Wiseman v.

2 Tastefully Better, Civ. A. No. 19-1441 (SEC),

, at *6 (N.D. Ill. May 2, 2023);

see also United States v. Chin, Crim. A. No. 22-87 (RCC),

, at *5 (S.D. W. Va.

Mar. 24, 2023); Dingman v. Cart Shield USA, LLC, Civ. A. No. 12-20088 (JG),

,

at *2–4 (S.D. Fla. July 3, 2013); cf. Romanelli v. Suliene,

(7th Cir. 2010) (noting

that the district court precluded impeachment via conviction for failure to report as a sex offender).

Okafor points to Bakor v. Barr,

(8th Cir. 2020), but that case does not help

him for multiple reasons. Bakor held that the Board of Immigration Appeals did not act

unreasonably in holding that the failure to register as a sex offender was a “crime involving moral

turpitude” for purposes of the immigration laws. Id. at 737. The assessment whether a crime is

one of moral turpitude is quite different from the assessment whether a crime involves a dishonest

act or false statement. For instance, the moral turpitude assessment “includes consideration of the

danger that the crime poses to society at large,” id., while the Rule 609 inquiry focuses on

truthfulness, not danger, see Crawford,

(“prime” among Rule 609 considerations

“is whether the crime, by its nature, is probative of a lack of veracity” (cleaned up) (quoting United

States v. Ortiz,

(2d Cir. 1977))). To be sure, the inquiries sometimes overlap.

“Generally, a crime involving dishonesty or false statement is considered to be one involving moral

turpitude.” Zarate v. U.S. Attorney Gen.,

, 1199 (11th Cir. 2022) (cleaned up). But

Bakor gave no indication that it rested on this ground, and relied instead on the registration law’s

importance to public safety. See 958 F.3d at 737.

Moreover, the Eighth Circuit in Bakor afforded the Board of Immigration Appeals Chevron

deference, which, of course, would not be applicable here even if Chevron remained good law.

See generally Loper Bright Enters. v. Raimondo,

(2024); Quito-Guachichulca v.

Garland,

, 735 & n.1 (8th Cir. 2024). And even with Chevron on its side, the Eighth

3 Circuit’s holding in Bakor was idiosyncratic; most circuits reached the opposite conclusion. See,

e.g., Mohamed v. Holder,

, 888–90 (4th Cir. 2014); Totimeh v. Attorney Gen. of U.S.,

(3d Cir. 2012) (collecting cases).

Of course, that a conviction fails Rule 609(a)(2)’s “dishonest act or false statement” test

does not necessarily mean it has no bearing at all on a witness’s truthfulness. But it does cause the

Court to discount the conviction’s probative value significantly. And in the end, while the 2010

conviction is of some (but, as explained, not much) probative value as to D.E.’s truthfulness, it

poses a serious threat of prejudice. The jury’s likely takeaway would be that D.E. had committed

a sex offense, not simply that he had failed to register as a sex offender. And a sex offense, maybe

more than any other sort of crime, risks inflaming the jury’s passion. See Willis v. Mullins, Civ.

A. No. 4-6542 (AWI),

, at *5 (E.D. Cal. Mar. 21, 2014) (“The status of sex

offender is extremely prejudicial.”); see also Bradshaw,

, at *3. Evidence of this

conviction would thus risk undermining the principle that juries ought not “discredit witnesses

because they are ‘bad men,’ rather than because they are biased or not credible.” United States v.

Tucker,

, 823 (D.C. Cir. 2021). Given the stringent test for permitting impeachment

using a conviction for which the witness was released more than 10 years ago—that the

conviction’s “probative value, supported by specific facts and circumstances,” must “substantially

outweigh[] its prejudicial effect,” Fed. R. Evid. 609(b)(1)—the Court will not permit impeachment

using this conviction, either.

For the above reasons, the government’s motion [ECF No. 112-4] is GRANTED.

4 /s/ JOHN D. BATES United States District Judge Dated: March 13, 2025

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