United States v. Paul Richard Portillo

concurring:

The analytic structure of our opinion to affirm has stress marks at critical parts, but this necessarily is so from the unfortunate rule we adopted in United States v. Cook, 608 F.2d 1175, 1176 (9th Cir. 1979) (en banc). Given the holding of Cook that an impeachment ruling is reviewable where the testimony under attack has not in fact been given, we are required to speculate on the question of prejudicial error. In this confusing state of affairs, I agree with the conclusions of Judge Wallace and concur in his opinion.

It seems appropriate to add, however, that the instant case confirms my earlier view that a trial court’s ruling on the admissibility of prior convictions should not be reviewable unless the defendant has taken the stand. Id. at 1188 (Kennedy, J., dissenting and concurring).

This armed bank robbery case comes before us for the second time on direct appeal following our earlier opinion in which we reversed in part. The facts are outlined in the first opinion, reported at 633 F.2d 1313 (9th Cir. 1980), cert. denied, 450 U.S. 1043 , 101 S.Ct. 1764 , 68 L.Ed.2d 241 (1981) (Portillo I). The issue now before us is extremely narrow. The district judge, in a pretrial motion in limine, held that if Portillo testified he could be impeached by evidence of two of his four prior felony convictions, a 1963 conviction for theft and a 1968 conviction for armed robbery. The district judge ruled that the prosecution could impeach *463 Portillo only by asking him whether he had been convicted of two felonies. The judge directed that Portillo could not be asked the nature of the crimes for which he had been convicted nor the underlying circumstances unless he testified that he had not committed two felonies. Whether this restricted use of the prior felonies was required is not before us.

In his ruling, the district judge did not justify his decision in terms of Fed.R.Evid. 609(b). 1 Portillo claimed, and we held in Portillo I, that the district judge failed to make the…

dissenting:

The district court, applying Fed.R.Evid. 609(a), determined that the probative value for impeachment purposes of the 1968 conviction outweighed its prejudicial effect on Portillo. The court offered no rationale for this determination. Unlike the majority, I would ask the district court to state the facts and the reasons underlying its ruling. Among other things, we ought to be told why this evidence and evidence of appellant’s 1963 conviction were needed by the government to prosecute successfully an apparently strong case. See United States v. Cathey, 591 F.2d 268, 275 (5th Cir. 1979). This information is important because the stronger the government’s case, the less need there is for impeachment evidence of a prior conviction. Such evidence is invariably prejudicial, and the likelihood of its use is usually enough to discourage a defendant from taking the witness stand.

I agree with the majority that the district court’s statement pertaining to the 1963 conviction “falls short of meeting the more exacting requirements of rule 609(b).” That rule excludes evidence of remote convictions unless certain stringent requirements are met. Among these is the requirement that…

699 F.2d 461 11 Fed. R. Evid. Serv. 1636 UNITED STATES of America, Plaintiff-Appellee, v. Paul Richard PORTILLO, Defendant-Appellant. No. 81-1588. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 11, 1982. Decided Nov. 4, 1982. Rehearing Denied Nov. 4, 1982. Stephen J. Hillman, Los Angeles, Cal., for defendant-appellant. James P. Walsh, Jr., Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before WALLACE, KENNEDY, and PREGERSON, Circuit Judges. WALLACE, Circuit Judge: 1 This armed bank robbery case comes before us for the second time on direct appeal following our earlier opinion in which we reversed in part. The facts are outlined in the first opinion, reported at 633 F.2d 1313 (9th Cir. 1980), cert. denied, 450 U.S. 1043 , 101 S.Ct. 1764 , 68 L.Ed.2d 241 (1981) (Portillo I ). The issue now before us is extremely narrow. The district judge, in a pretrial motion in limine, held that if Portillo testified he could be impeached by evidence of two of his four prior felony convictions, a 1963 conviction for theft and a 1968 conviction for armed robbery. The district…