United States v. Patsy Barb

SILER, Circuit Judge,

dissenting.

I respectfully dissent from the decision by the majority that the use of three Tennessee misdemeanor convictions for impeachment of the defendant was reversible error. As the majority has not discussed the Sentencing Guidelines issue, I also decline to express an opinion on that question.

Under Fed.R.Evid. 609(a)(2), if a witness has a prior conviction for a crime involving dishonesty or false statement, the court does *697 not have discretion .to deny its admissibility, unless it is more than ten years old or there are other problems with the conviction, not in issue in this case. See United States v. Morrow, 977 F.2d 222, 228 (6th Cir.1992) (en banc), cert. denied, — U.S. -, 113 S.Ct. 2969 , 125 L.Ed.2d 668 (1993).

Defendant’s prior worthless checks convictions involved dishonesty. There seems to be a question about what section of the Tennessee statutes was applicable at the time Barb committed her bad check violation. The majority uses Tenn.Code Ann. § 39-14-121, which is also cited by the government in its brief. Defendant does not cite any particular section. Nevertheless, the presentence report shows that although the convictions occurred in September 1989, they were based upon passing or issuing worthless checks in March and April, 1988. It appears that Tenn.Code Ann. § 39-14-121, adopted in 1989 and amended later, is a modification of the previous law, Tenn.Code Ann. § 39-3-301, which provided in pertinent part:

It shall be unlawful for any person with fraudulent intent to make or draw or issue or utter or deliver any check ... for the payment of money drawn on any bank ... for the purpose of obtaining money, or any article of value, or to obtain credit, knowing at the time of making, drawing, uttering or delivering said ... check ... that the maker, or drawer, has not sufficient funds in, or on deposit with, such bank .'.. for the payment of such check ... in full, and all other checks ... upon such funds then outstanding.

Nevertheless, under either of the statutes, the violations involved dishonesty. As the majority opinion recites, State v. Denami, 594 S.W.2d 747, 750 (Tenn.Crim.App.1979), held, “The gravamen of the offense charged is the fraudulent intent with which the cheek is passed or uttered.” Denami followed Stines v. State, 556 S.W.2d 234, 235 (Tenn.Crim.App.1977), which stated: “It is passing the worthless check with fraudulent intent that constitutes the crime.” The decision in State v. Goad, 707 S.W.2d 846, 851 (Tenn.1986), is not to the contrary. In that case, the Tennessee Supreme Court found no abuse of discretion when the trial judge concluded that the proof of prior bad check convictions was not sufficiently clear nor relevant to the issue of credibility of the witness who had been convicted. Thus, the trial court had the discretion to exclude the convictions under Tennessee law. Likewise, in the unpublished decision of Barbee v. Dixon, 1992 WL 296739 (Tenn.App. Oct. 21, 1992), the court of appeals found error when the trial court held the probative value of the misdemeanor bad check conviction outweighed any prejudicial effect to the plaintiff in a civil case. The error was not in the use of a prior misdemeanor conviction for impeachment, but it was in the way that defense counsel raised it in questioning the plaintiff.

Therefore, I would rely upon the language from Denami and the-decisions from other federal courts which have held that worthless check convictions involved dishonesty and, therefore, are admissible under Fed.R.Evid. 609(a)(2). See, e.g., United States v. Kane, 944 F.2d 1406, 1412 (7th Cir.1991); Wagner v. Firestone Tire & Rubber Co., 890 F.2d 652 , 655 n. 3 (3d Cir.1989); United States v. Rogers, 853 F.2d 249, 252 (4th Cir.), cert. denied, 488 U.S. 946 , 109 S.Ct. 375 , 102 L.Ed.2d 364 (1988); United States v. Mucci, 630 F.2d 737, 743 (10th Cir.1980). Thus, I conclude that the district court did not err by allowing the use of these prior misdemeanor convictions for impeachment purposes.