Supervision is not ‘confinement’ when considering prior conviction

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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 addressed the question, and found that both have held that the 10-year clock is tolled during time the defendant was reincarcerated after supervision was revoked. U.S. v. Gray, 852 F.2d 136 (4th Cir. 1988); U.S. v. McLintock, 748 F.2d 1278 (9th Cir. 1984).

Analysis

The court suggests that the other circuits that have addressed tolling during reincarceration are unanimous that the clock is tolled during that period.

However, the issue is actually a little more nuanced.

In McClintock, the Ninth Circuit wrote, “This case, however, involves only a narrow variant of this issue. McClintock's probation was revoked for violation of a substantive condition — his failure to refrain from engaging professionally in charitable fund raising — that directly paralleled his original crime — engaging professionally in fraudulent charitable fund raising. The original crime of which McClintock was convicted involved dishonesty or false statement. The probation violation, because it so directly tracked the original crime, may have implicated the same, initial type of dishonesty.” McClintock, 748 at 1288.

The court continued, “We see no reason why that rationale should not extend to confinement pursuant to probation revocation, where the violation involved a substantive probation condition and closely parallels the initial, fraudulent activity.” Id.

As a result, attorneys seeking to prevent impeachment of a witness should not just assume that all the persuasive authority from other jurisdictions is against them.

McClintock can be distinguished, and the prior conviction possibly excluded, if the basis for the witness’ revocation did not involve dishonesty or some other “substantive” violation of supervision.