7th Circuit rules supervision is not 'confinement' when considering prior conviction.

• Author: Ziemer, David

Byline: David Ziemer

Supervision after serving a prison term is not confinement, when calculating whether a prior conviction can be used to impeach a witness.

However, the Sept. 4 opinion by the Seventh Circuit declined to address what impact revocation of supervision would have on the admissibility of the underlying conviction.

In 1993, Anthony Rogers was convicted of distribution of cocaine. He was released from prison in 1994, but remained on supervision until 1999.

In 2005, he was tried on firearm offenses in Indiana federal court, and testified in his own defense.

The government successfully impeached him with his prior conviction, and he was found guilty.

On appeal, in an opinion by Judge Diane S. Sykes, the Seventh Circuit agreed with Rogers that the prior conviction was improperly used to impeach him, but found the error harmless.

Federal Rule of Evidence 609(b) provides that, as a general rule, evidence of a prior conviction is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction.

The conviction may be admitted in some circumstances, but only if its probative value substantially outweighs its prejudicial effect.

The court found that the issue is one of first impression in the Seventh Circuit, even though, in U.S. v. Gant, 396 F.3d 906 (7th Cir. 2005), the court assumed (because the parties did not dispute it) that the date of discharge from supervision is the relevant date, rather than release from prison.

Looking to other jurisdictions, the court found that, in U.S. v. Daniel, 957 F.2d 162 (5th Cir. 1992), the Fifth Circuit held that confinement does not include time spent on supervision.

The Fifth Circuit concluded, and the Seventh Circuit agreed, that the unambiguous language of the statute starts the 10-year clock running at the date of conviction or release from actual confinement.

Because the government did not argue that the probative value of the conviction substantially outweighed its prejudicial value, the court held that the prior drug conviction was improperly used to impeach him.

However, it found the evidence against him so overwhelming that the error was harmless, and ultimately affirmed the convictions.

The court briefly addressed, but left for another day, what the effect is when supervision is revoked, and the defendant returned to custody.

The court found two other circuits that have...