Ohler v. United States: Defendants Waive Appellate Review by Reducing the Sting of Prior Conviction Impeachment Evidence - Misty Dawn Garrett

• Citation: Vol. 52 No. 2
• Publication year: 2001

CASENOTE

Ohler v. United States: Defendants Waive

Appellate Review By Reducing the Sting of

Prior Conviction Impeachment Evidence

In Ohler v. United States,¹ the United States Supreme Court adopted a per se waiver rule holding that a defendant waives the right to appeal an in limine ruling permitting the government to impeach the defendant with evidence of a prior conviction when the defendant introduced the evidence on direct examination in an effort to reduce the sting of the evidence.²

I. Factual Background

In July 1997, Maria Suzuki Ohler attempted to enter the United States from Mexico through San Ysidro, California. A customs inspector searched Ohler's van and noticed that someone tampered with an interior panel. The inspector found approximately eighty-one pounds of marijuana in the panel.³ Ohler was arrested and subsequently indicted on August 6, 1997, for importation of marijuana in violation of 21 U.S.C.

Sec. 952 and 960 and for possession of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1).⁴

Before trial the government filed a motion in limine seeking to admit Ohler's 1993 felony conviction for possession of methamphetamine under Federal Rule of Evidence 404(b) ("Rule 404(b)")⁵ and Federal Rule of Evidence 609(a)(1) ("Rule 609(a)(1)").⁶ The district court denied the government's motion to admit Ohler's conviction under Rule 404(b), but reserved ruling on the motion to admit Ohler's conviction under Rule 609(a)(1). On the first day of Ohler's trial, the district court ruled that her conviction was admissible for impeachment purposes under Rule 609(a)(1) if she testified on her own behalf.⁷

Ohler testified at trial and denied knowledge of the hidden marijuana. She also attempted to take the sting out of the impeachment evidence by admitting that she had previously been convicted of possession of methamphetamine. On cross-examination, Ohler answered in the affirmative when the prosecutor asked her whether her prior conviction was a felony conviction. On redirect examination, Ohler explained that her conviction was merely for possession of a personal-use quantity, not a distribution quantity. The jury found Ohler guilty of both counts, and the court sentenced her to thirty months' imprisonment and three years of supervised release; it also assessed a $200 penalty.⁸

Ohler appealed, arguing that the district court erred by admitting evidence of her drug possession conviction under Rule 609(a)(1). Ohler contended that before the 1990 amendment to Rule 609(a)(1), the literal language of the rule suggested that prior conviction impeachment evidence was only admissible during cross-examination.⁹ Therefore, because the 1990 amendment to Rule 609(a)(1) removed the language suggesting the restriction, the amended rule specifically sanctioned the strategy of allowing a defendant to remove the sting of impeachment evidence on direct examination.¹⁰ Ohler argued that her use of this strategy should not act as a bar to appellate review of the trial court's decision to admit the evidence. The Ninth Circuit Court of Appeals rejected Ohler's argument.¹¹ The court explained that, even before the amendment, some courts held that the cross-examination limitation of Rule 609(a)(1) was inapplicable and permitted defendants to reduce the sting by introducing impeachment evidence on direct examination.¹² Furthermore, the court found that the rule amendment did not address the issue of whether the defendant waived appeal of the trial court's ruling admitting the prior conviction.¹³ The court of appeals concluded that Ohler waived her objection to the admissibility of the prior conviction by introducing evidence of the conviction during her direct examination.¹⁴

The United States Supreme Court granted certiorari to determine whether appellate review of an in limine ruling permitting prior conviction impeachment evidence is available when a defendant introduces the conviction during direct examination.¹⁵ The Court affirmed the court of appeals decision holding that a defendant who introduces evidence of a prior conviction during direct examination in an attempt to reduce the sting of impeachment evidence waives appellate review of the alleged erroneous admission of the evidence.¹⁶

II. Legal Background

It has long been a general trial strategy for a defendant to mitigate the damaging effect of prior conviction impeachment evidence by introducing the conviction during direct examination.¹⁷ This tactic serves two purposes: It "takes the sting out of [the evidence] by preventing the prosecutor from bringing it out [first]," and it gives the defense attorney "the opportunity to excuse or explain [the conviction] in the most satisfactory way."¹⁸ If a defendant does not explain or reveal his prior conviction on direct examination, a jury may think the defendant is being dishonest and trying to hide the conviction.¹⁹ Therefore, a defendant who loses a motion in limine ruling allowing the admissibility of prior conviction evidence is motivated to introduce the harmful evidence before the prosecutor in order to reduce the prejudicial effect on the jury.²⁰

While a defendant's attempt to reduce the sting of this evidence was a commonly used trial strategy before the adoption of the Federal Rules of Evidence, there was no uniform approach to determine whether a defendant waived his right to appeal a motion in limine ruling allowing the admission of prior conviction impeachment evidence when a defendant introduced this evidence on direct examination. For example, the Second Circuit in United States v. Puco²¹ held that the defendant can appeal the trial judge's decision allowing the admission of evidence of the defendant's conviction for violating federal narcotics laws even when the strategy was employed.²² The court explained that a defendant is "entitled to attempt to offset the prejudicial effect of admission of his prior conviction by referring to it before the government [does] and by using it to support his defense."²³ Likewise, the District of Columbia

Circuit in United States v. Maynard²⁴ permitted the defendant to appeal the trial judge's ruling admitting impeachment evidence of the defense's key witness's prior arrest when the defendant made the "tactical decision" to introduce this evidence on direct examination.²⁵ The court explained that the defendant was "fairly entitled" to "do what he fairly could to limit the prejudicial impact of the ruling."²⁶

However, in Shorter v. United States,²⁷ the Ninth Circuit Court of Appeals held that a defendant who offers prior conviction impeachment evidence after the court has ruled the evidence admissible over the defendant's objection cannot then complain that the introduction of the evidence violated his constitutional rights.²⁸ There, defendant offered this evidence as a "matter of trial strategy, probably to soften the anticipated blow in the eyes of the jury."²⁹ But the court opined, "[T]he better practice is to make an objection" when the evidence is about to be presented by the government in cross-examination.³⁰ The Seventh Circuit Court of Appeals, in United States v. Hauff,³¹ also held that, when the defendant introduces prior conviction impeachment evidence, the defendant waives the right to object to its admission even if the defendant's prior conviction is on appeal and subject to reversal.³²

After Congress adopted the Federal Rules of Evidence in 1975, defendants continued to introduce prior conviction evidence on direct examination in order to reduce the sting of the evidence as part of trial strategy.³³ Rule 103 of the Federal Rules of Evidence sets forth the requirements for appealing evidentiary claims,³⁴ but it does not address waiver of objection when a defendant introduces evidence on direct examination after losing an in limine ruling allowing the opponent to admit evidence.³⁵ Likewise, Rule 609 does not address the issue.³⁶ In the absence of specific direction in the Federal Rules of Evidence on the issue of whether the defendant waives appellate review of a motion in limine ruling allowing the introduction of prior conviction impeachment evidence when the defendant introduces this evidence,³⁷ the circuit courts continued to split on the issue—some holding the defendant waived appellate review and some holding the defendant did not waive appellate review.³⁸

The Supreme Court addressed a related issue in Luce v. United States.³⁹ In Luce defendant made an in limine motion seeking to preclude the government from using a prior conviction for impeachment. The district court denied the motion, and Luce, therefore, did not testify. On appeal, Luce contended that the district judge erred in ruling that the evidence would be admissible.⁴⁰ The Court concluded that Luce did not preserve a claim of error based on the trial court's in limine ruling because he failed to testify and the evidence was never introduced.⁴¹ The Court reasoned that when a defendant does not testify, the reviewing court is prevented from "determinfing] the impact any erroneous impeachment may have had in light of the record as a whole" because the court does not know the "nature of the defendant's testimony" and does not know whether in fact the ruling kept the defendant from testifying.⁴² Thus, the Court held that in order for a defendant to preserve appellate review of an error in admitting prior conviction impeachment evidence, the defendant must testify at trial.⁴³

Luce put an end to the confusion regarding whether a defendant waived review of the admissibility of prior conviction impeachment evidence when the defendant does not testify, but the Court left open the issue of waiver when a defendant does testify and brings out the evidence on direct examination.⁴⁴ The circuit courts, applying Luce to situations in which a defendant testifies, have not taken a uniform approach. For example, the Fifth Circuit Court of Appeals, in United States v. Fisher,⁴⁵ held that...