United States v. Robert Nello Brackeen
Opinion
Opinion
This court has convened en banc to determine whether bank robbery necessarily involves “dishonesty,” as that term is used in Federal Rule of Evidence 609(a)(2). The question arises in the context of whether a witness can be impeached by evidence of prior convictions. Faced with intra-circuit precedents which provide irreconcilably conflicting answers to the question, the original pane! called sua sponte for en banc review. See Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1479 (9th Cir.1987) (en banc), rev’d on other grounds, 490 U.S. 642 , 109 S.Ct. 2115 , 104 L.Ed.2d 733 (1989). We now conclude that for purposes of Rule 609(a)(2) bank robbery is not per se a crime of “dishonesty.”
FACTS AND PROCEEDINGS BELOW
Robert Nello Brackeen robbed three different banks, one bank a day on each of three separate days in July 1990. In the first robbery, Brackeen and an accomplice, Jermaine Moore, presented a threatening note to a teller. Bank surveillance photos showed Moore with a pistol, which he pointed at the teller. During the robbery, Brackeen and Moore acted in close proximity to each other. In the other two robberies, Brackeen was unarmed and apparently acted alone.