01-3014 U.S. v. Wilson

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In Luce v. United States, 469 U.S. 38, 41 (1984), the Supreme Court recognized the difficulty a trial court faces when it is asked to make a ruling in the abstract about the consequences of a defendant’s testimony. Luce, on trial in federal court on drug charges, moved to preclude the government from introducing evidence of his prior conviction to impeach him if he testified. Like Wilson, he did not commit to testifying if the motion was granted, and no adequate proffer was made as to what the testimony would be if it indeed took place. Id. at 39. Luce ended up not testifying and was convicted. The trial court had made a conditional ruling that the evidence would have been admissible. The Supreme Court agreed that the ruling could not be reviewed, because it was speculative whether the government’s impeaching evidence would even have been introduced, and it could not assume that the conditional ruling was the reason for the defendant’s decision not to testify. Id. at 41-42. As the government’s evidence never came in, it was impossible to determine whether it had negatively and impermissibly affected the jury. In order to preserve the right to challenge the evidentiary ruling, Luce would have had to introduce his evidence, object to the government’s evidence (if indeed it was brought in), and then appeal if he was convicted.

“Other circuits have extended the Luce principle beyond its original context of FEDERAL RULE OF EVIDENCE 609. See United States v. DiMatteo, 759 F.2d 831, 832 (11th Cir. 1985) (applying Luce where the defendant’s witness would be impeached with evidence offered under Rule 608). See also United States v. Goldman, 41 F.3d 785, 788 (1st Cir. 1994) (‘Although Luce involved impeachment by conviction under Rule 609, the reasons given by the Supreme Court for requiring the defendant to testify apply with full force to the kind of Rule 403 and 404 objections that are advanced by Goldman in this case.’); Palmieri v. DeFaria, 88 F.3d 136, 140-41 (2d Cir. 1996) (where the plaintiff decided to take an adverse judgment rather than challenge an advance ruling by putting on evidence at trial, the in limine ruling would not be reviewed on appeal); United States v. Ortiz, 857 F.2d 900, 905 (2d Cir. 1988) (where uncharged misconduct is ruled admissible if the defendant pursues a certain defense, the defendant must actually pursue that defense at trial in order to preserve a claim of error on appeal); United States v. Bond, 87 F.3d 695, 701 (5th Cir. 1996) (where the trial court rules in limine that the defendant would waive his fifth amendment privilege were he to testify, the defendant must take the stand and testify in order to challenge that ruling on appeal).

“Following this line of cases, we agree that it is inappropriate for us to review Wilson’s claim on the merits here. He exercised his constitutional right to refrain from introducing certain evidence at the trial and cannot now attack a potential introduction of evidence by the government in response to his potential testimony. We therefore do not address his arguments with respect to the alleged violation of his Fifth Amendment rights.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Moran, J., Wood, J.