United States v. Tammy Fowler CR-09-47-01-JL 05/29/09 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 09-cr-47-01-JL Opinion No.

Tammy Fowler

O R D E R

Charged with aiding and abetting a bank robbery in violation

of

and 2113(a), the defendant moved in limine to

(1) preclude the United States from cross-examining her at trial

with respect to certain prior convictions; (2) exclude evidence

of an outstanding warrant for her arrest in the state of Florida;

and (3) exclude statements made by Paul Dimeo.1

The defendant's first motion in limine is granted in part,

and denied in part. The defendant's second and third motions in

limine are granted in their entirety without prejudice to the

possible admissibility of the evidence at trial for purposes not

identified in the motions.

I. Analysis

A. Impeachment evidence

The defendant contends that the United States should not be

allowed to impeach her credibility with evidence that, in 2004,

1(Document nos. 10, 17, and 18, respectively). she was convicted in a Florida state court2 of using a

fraudulently obtained or false receipt to obtain something of

value, in violation of Florida Statute § 812.017(2). She argues

that such impeachment--which she dubiously characterizes as

"shoplifting," see infra--is impermissible under Rule 609(a)(2)

because commission of that offense did not necessarily reguire

proof or admission of an act that would be indicative of her

propensity for truthfulness.

Rule 609(a) provides two avenues for admitting a defendant's

prior convictions for impeachment purposes:

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime reguired proof or admission of an act of dishonesty or false statement by the witness.

2Florida v. Fowler, No. 05-2004-MM-047210 (Fla. Brevard County C t . Sept. 14, 2004)

2 Fed. R. Evid. 609(a).3 Rule 609(a)(1) grants the trial judge

discretion, tempered by Rule 403, to determine whether to admit

evidence of a prior felony conviction for impeachment purposes.

By contrast. Rule 609(a) (2) reguires admission where the

conviction involved an element of dishonesty or false statement.

See SEC v. Sargent,

, 80 (1st Cir. 2000) ("district

courts do not have discretion to exclude prior convictions

involving dishonesty or false statements").4

Under Rule 609(a)(2), the specific provision at issue here,

convictions involving dishonesty or false statement encompass

"crimes such as perjury or subornation of perjury, false

statement, criminal fraud, embezzlement, or false pretense, or

any other offense in the nature of crimen falsi, the commission

of which involves some element of deceit, untruthfulness, or

falsification bearing on the accused's propensity to testify

truthfully." Fed. R. Evid. 609 advisory committee notes (2006

amendments). Thus, "[t]o be admissible under Rule 609(a)(2), a

prior conviction must involve some element of deceit,

untruthfulness, or falsification . . . ." United States v.

3Both sections of Rule 609(a) are subject to limitations not relevant here. See Fed. R. Evid. 609(b)-(d).

4Convictions gualifying under Rule 609(a)(2) are not subject to Rule 403 balancing. See United States v. Tracy,

(1st Cir. 1994).

3 Meserve,

, 328 (1st Cir. 2001) (internal quotation

marks and citation omitted).

The offense of which the defendant was convicted, Florida

Statute § 812.017 (2),5 provides:

Any person who obtains merchandise, money, or any other thing of value through the use of a fraudulently obtained receipt or false receipt commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2). A conviction for this offense, the

statue defining which includes the words "fraudulently" and

"false," plainly involves dishonesty or false statement.6 See

Tracy,

(holding that uttering a false prescription

5Located in a chapter of the Florida Criminal Code entitled the "Florida Anti-Fencing Act." See

.

6There can be no reasonable argument that § 812.017(2) does not necessarily involve an element of deceit, untruthfulness, or falsification. While the statute is silent as to what culpable mental state is a necessary element of this offense, it also contains no indication that the Florida legislature intended to dispense with mens rea. As the Florida Supreme Court will "ordinarily presume that the Legislature intends statutes defining a criminal violation to contain a knowledge requirement absent an express indication of a contrary intent," State v. Giorgetti,

(Fla. 2004), this court will do the same. As that court reasoned in a case overturning a conviction where the trial court refused to instruct the jury that the prosecution had to prove the defendant knew the substance he possessed was cocaine, "[i]nterpreting the statute [] as dispensing with scienter would criminalize a broad range of apparently innocent conduct." Chicone v. State,

(Fla. 1996) (internal quotation marks and citation omitted) (noting that "a strict reading of the statue with no scienter requirement would render criminal a mail carrier's unknowing delivery of a package which contained cocaine").

4 is subject to mandatory admission under Rule 609(a) (2)); see also

Black's Law Dictionary 594 (8th ed. 2004) (defining fraud as "a

knowing misrepresentation of the truth or concealment of a

material fact to induce another to act to his or her detriment").

The defendant's 2004 conviction establishes that she knowingly

tendered a fraudulently obtained or false receipt in exchange for

something of value. Contrary to the defendant's

characterization, it amounted to something more deceitful,

untrue, and false than a straight theft offense.7 See Meserve,

271 F.3d at 328. The Florida conviction is, by operation of Rule

609, necessarily indicative of a propensity for untruthfulness

and, thus, under the unambiguous, mandatory language of Rule

609(a)(2), admissible for impeachment. As the United States has

conceded the inadmissibility of the remaining convictions at

7The court expresses no opinion as to whether "shoplifting," the term the defendant inaccurately used to describe her prior offense, is a gualifying conviction under Rule 609(a) (2) . Compare United States v. Galati,

(7th Cir. 2000) (holding that petty shoplifting does not gualify as crime of dishonesty "unless it involves items of significant value") and United States v. Grandmont,

(1st Cir. 1982) (holding that, under a Rule 609(a) (2) analysis, robbery per se does not involve dishonesty though it may gualify if shown to have been committed by "fraudulent or deceitful means") with United States v. Del Toro Soto,

(1st Cir. 1982) (noting that the defendant's "grand larceny conviction could certainly have been introduced under Federal Rule of Evidence 609(a)(2)" for impeachment purposes).

5 issue,8 the remainder of the defendant's first motion in limine

is granted.

B. Prior bad act evidence

The defendant's second motion in limine seeks to exclude any

evidence, revealed in documentation of a background records check

conducted by the Carroll County Sheriff's Department shortly

after the bank robbery at issue, of an outstanding arrest warrant

in her name. Specifically, the defendant seeks to prevent the

United States from introducing evidence that she "was wanted in

Florida for a contempt of court warrant but no extradition

outside Florida."9 She argues that such evidence (1) is

irrelevant, see Fed. R. Evid. 402; (2) is inadmissible evidence

of a prior bad act, see Fed. R. Evid. 404 (b); and (3) has

probative value, if any, that is substantially outweighed by its

prejudicial effect, see Fed. R. Evid. 403.

8The defendant also sought to exclude: (1) a June 1990 felony conviction for trafficking in scheduled drugs; and (2) three misdemeanor shoplifting convictions from September 2004.

9At issue, presumably, is the admissibility of the information contained in the background check, and not the memorializing documentation itself.

6 Rule 404(b)10 prohibits the introduction of evidence of a

defendant's prior bad acts unless such evidence is probative of a

material fact other than the defendant's character or propensity

to commit a crime of the sort for which she is on trial. See

Fed. R. Evid. 404(b); United States v. Oppon,

(1st Cir. 1988). The court of appeals has adopted a two-pronged

framework to evaluate the admissibility of such evidence. See

United States v. DeCicco,

(1st Cir. 2006). Under

the first prong, the court "must determine whether the evidence

in guestion has any 'special relevance' exclusive of defendant's

character or propensity."

Under the second prong, even if

some "special relevance" is found, the evidence must be excluded

if its probative value is substantially outweighed by the danger

of unfair prejudice. Id.; see also United States v. Sebaggala,

(1st Cir. 2001) (noting that "Rule 404(b)

incorporates sub silentio the prophylaxis of Federal Rule of

Evidence 403"). Here, the United States has informed the court

that it "does not intend to offer the results of the records

10Rule 404(b) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed. R. Evid. 404 (b) .

7 check in the direct examination of any witness in its case-in-

chief ."

The United States instead asks the court to reserve its

right to elicit such information (1) "on redirect examination of

any witness called by the government, if appropriate to respond

to information elicited; or (2) "in cross-examination of any

witness called by the defense." The court, therefore, grants the

defendant's second motion in limine, but declines to rule on the

admissibility of the contested evidence, for the purposes

proposed by the United States, out of context. See, e.g.. United

States v. Balthazard,

(1st Cir. 2004) (holding

that defendant opened the door to cross-examination on Rule

404(b) evidence by testifying about the subject on direct). The

court's ruling on the admissibility of this evidence for purposes

outside the scope of the motion will be made, if necessary, at

trial.

C. Statements of Paul Dimeo

The defendant's third motion in limine seeks to preclude the

United States from introducing statements that Paul Dimeo made to

Sgt. Michael Santuccio of the Carroll County Sheriff's

Department. She contends that admission of these statements,

which refer to the defendant's involvement in the bank robbery

Dimeo is alleged to have committed, would violate her rights under the Confrontation Clause of the Sixth Amendment, as defined

in Crawford v. Washington,

(2004) (further

limiting use in criminal trials of hearsay statements that are

"testimonial" in nature).

Again, the United States has indicated that it has no

intention of offering the statements identified in the

defendant's motion as part of its case-in-chief. The prosecution

instead seeks to reserve its rights to elicit testimony regarding

these statements on redirect examination, if the defendant opens

the door to the substance of these statements on cross-

examination, or "in the cross-examination of any witness called

by the defense." Presumably, by "any witness," the prosecution

is referring to Dimeo and Santuccio. The defendant's motion is

therefore granted, but the court's ruling on the use of the

statements for the purposes raised by the United States is again

deferred until trial.

II . Conclusion

For the foregoing reasons, the defendant's first motion in

limine11 is DENIED in part, and GRANTED in part. The remaining

motions in limine12 are GRANTED subject to the limitations set

forth above.

11 (Document no. 10).

12 (Document nos. 17 and 18) . SO ORDERED.

lante United States District Judge

Dated: May 2 9, 2 00 9

cc: Richard H. Hubbard, Esq. Donald A. Feith, Esq.

10