Respondents Brief — Luce v. United States

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3u the Supreme Court of the U

OCTOBER TERM, 1984

EDWARD LUCE, PETITIONER

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

Rex E. Lee

Solicitor General

STEPHEN S. TRoTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

Bruce N. KUHLIK

Assistant to the Solicitor General

SARA CRISCITELLI

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

See BESTAVAILABLECOPY nn

QUESTION PRESENTED

Whether a preliminary ruling by the district court,

denying petitioner’s motion to limit the government’s

ability to cross-examine him about a prior convic-

tion, was reviewable on appeal after petitioner

declined to testify at trial.

(1)

TABLE OF CONTENTS

Page

A 1

Eee 1

SE crcnetiineestnnesedencenencenensesrtseeceesesescesececesers 2

CC 7

Argument:

The district court’s preliminary ruling denying

petitioner’s motion to prohibit cross-examination

about a prior conviction was not reviewable on

appeal after petitioner declined to testify at trial... 10

A. The ruling was necessarily tentative and any

B. It is not unfair to require a defendant to testify

in order to preserve his claim that impeachmert

evidence was inadmissible .................. 19

TABLE OF AUTHORITIES

Cases :

Blackledge v. Perry, 417 U.S. 21 —......---0-en..... 28

Bordenkircher v. Hayes, 434 U.S. 357 —.................... 23

Brady Vv. United States, 397 U.S. 742 ................... 22-23, 26

Brooks v. Tennessee, 406 U.S. 605 ............... 13, 14, 22, 23

Brown Vv. United States, 356 U.S. 148 ............ 23

Chaffin Vv. Stynchcombe, 412 U.S. 17 _........00.-.-....... 12, 26

Corbitt v. New Jersey, 489 U.S. 212 .... 25

Crampton Vv. Ohio, 402 U.S. 183 _.............. 13, 23, 25, 26, 28

Fay V. Noia, 372 U.S. 391 ................2-2..ccceccecccecneeneeee 28

Garner V. United States, 424 U.S. 648 24

Gordon Vv. United States, 383 F.2d 936, cert. denied,

CE 11

Government of the Virgin Islands v. Bedford, 671

SE 17

IV v

Cases—Continued : Page Cases—Continued : Page

Green V. United States, 355 U.S. 184 0... 28 United States v. Cobb, 688 F.2d 607, cert. denied,

Gruenwald Vv. United States, 3563 U.S. 391... 19 READE TRL OE TE 15

Harris v. New York, 401 U.S. 222 000... 23 United States v. Cook, 608 F.2d 1175, cert. denied,

Harrison Vv. United States, 392 U.S. 219 ....... 23 ee _......passim

Hubbard v. Wilson, 401 F. Supp. 495... — 19 United States v. Cor, 464 F.24 987... ssisi(‘(‘(‘(a 17

Jenkins Vv. Anderson, 447 U.S. 231... 19, 23, 25 United States v. Curcio, 712 F.2d 1532 ei 16

Kotteakos Vv. United States, 328 U.S. 750... aaa 17 United States v. Fountain, 642 F.2d 1083, cert. de-

Lefkowitz v. Newsome, 420 U.S, 283 eeuesiittai 26 ee ctuumues $1

Leno V. Gaughan, 664 F.2d 314 00. 19 United States v. Gaertner, 705 F.2d 210... ‘11-12

Luck Vv. United States, 348 F.2d 763 0.00. | 11 United States v. Grayson, 488 U.S. 41 .__.18, 19, 23, 25

Marshall v. Lonberger, 459 U.S. 422 000000... 20 United States v. Gustafson, 728 F.2d 1078 21

McDonough Power Equipment, Inc. Vv. Greenwood, United States v. Hasting, No. 81-1463 (May 23,

No. 82-958 (Jan. 18, 1984) sn. 31 AE RE a a ae ee 17, 30

McGautha V. California, 402 U.S. 188... 7 13 United States Vv. Hickey, 596 F.2d 1082, cert. de-

McMann V. Richardson, 397 U.S. 759 .......... eahette 26, 2 _ See 22

Middendorf Vv. Henry, 425 U.S. 26 20, 25 United States v. Johnston, 643 F2d55 22

Namet v. United States, 373 U.S. 179... - United States v. Jorn, 400 U.S. 470 28

New Jersey V. Portash, 440 U.S. 450... soc passrm nited States v. Kahn, 472 F.2d 272, cert. denied,

Raffel v. United States, 271 U.S. 494 ................... 19 ll Te a eae eae 2a - 22

Selective Service System V. Minnesota Public Inter- United States v. Key, 717 F.2d aap ndednll te 11, 22

est Research Group, No. 83-276 (July 5, 1984)... 23 United States v. Knox, 396 U.S. 77 27

South Dakota v. Neville, 459 U.S. 5538 ......... a 25 United States v. Kordel, 397 U.S. 1 cer 27

Spencer v. Texas, 385 U.S. 554 nnn. 19-20 United States v. Lace, 669 F.2d 46, cert. denied, 459

State v. Rodriguez, 126 Ariz. 28, 612 P.2d 484... 10 i 17

Strickland v. Washington, No. 82-1554 (May 14, United States v. LeBlanc, 612 F.2d 1012, cert. de-

ERTS IS eat AR Bl ak oeld 26 nied, 449 U.S. 849 eee OF be ee 13, 27

United States v. Banks, 687 F.2d 967, cert. denied, United States v. Lipscomb, 702 F.2d 1049 ....——s« 30-8)

MERA Ae i cian aa 12 United States v. McCollum, 782 F.2d 1419 15, 16

United States v. Barletta, 644 F.2d 50 0... 21 United States v. Mehrmanesh, 682 F.2d 1303 12

United States v. Beechum, 582 F.2d 898, cert. de- United States v. Ockes, 565 F.2d 170... 81

re tenrirertecersenipnan - 15 United States v. Pantone, 6384 F.2d 716... 13

United States v. Belt, 514 F.2d 887 ............... 19 United States v. Rivers, 698 F.2452... 21, 30

United States v. Burkhead, 646 F.2d 1283, cert. de- United States v. Simpson, 709 F.2d 908, cert. de-

ES i A A 21 nied, No. 83-5496 (Oct. 31,1988) 5. 17

United States v. Burns, 684 F.2d 1066, cert. denied, United States v. Spero, 625 F.2d 779... 17

No. (:2-5609 (Jan. 24, 1988) 16-17 United States v. Spinella, 506 F.2d 426, cert. de-

United States v. Calderon, 348 U.S. 160... 26, 28 "SY ga i a ES oa 14

United States v. Ciampaglia, 628 F.2d 632, cert. United States v. Tercero, 640 F.2d 190, cert. de-

denied, 449 U.S. 956 pabeseoenenanen 21 EE Se 22

United States v. Clark, 732 F.2d 1586 0.0... 31 United States v. Thibadeaw, 671 F.2d 75... 17

vi Vil

Cases—Continued : Page

United States v. Toney, 615 F.2d 277, cert. denied, Miscellaneous—Continued : Page

4g GC FS SES See 12, 18, 31 D. Epstein & D. Austern, Crim. Just. Sec., ABA,

United States v. Witschner, 624 F.2d 840, cert. de- Uniform Rules of Criminal Procedure : Compari-

ce 22, 23 son and Analysis (July 1975) 17

Wainwright v. Sykes, 488 U.S. 72 26 Note, Conditional Guilty Pleas, 98 Harv. L. Rev.

Walder v. United States, 347 U.S. 62 ........... ee 12 BED CIEE cinrinentidinbsthasrerthinaeietbeninarmamenneneuntntgmscenne 17

Walker v. City of Birmingham, 388 U.S. 307 __...... 26 Note, Other Crimes Evidence at Trial: Of Balanc-

Williams v. Florida, 399 U.S. 78 ........... ncieininainsindiedl 23 ing and Other Matters, 70 Yale L.J. 763 (1961) .. 15

R. Traynor, The Riddle of Harmless Error (1970) . 30

Constitution, statutes and rules : Saltzburg, Pleas of Guilty and the Loss of Consti-

U.S. Const. : tutional Rights: The Current Price of Pleading

A EE ee ee ee ee 20 Guilty, 76 Mich. L. Rev. 1265 (1978) ............ 17

RAN eR nS 24 Westen, Away From Waiver: A Rationale for the

21 U.S.C. 841(a) (1) _........ OSS eh Me cL 2 Forfeiture of Constitutional Rights in Criminal

iT Tt ee Se = 2 Procedure, 76 Mich. L. Rev. 1214 (1977) ............ 17

A lS ERs al 5c SERRA ES SEE 24 Westen & Mandell, To Talk, to Balk, or to Lie: The

Til. Ann. Stat. ch. 5614 (Smith-Hurd Supp. 1984-

1985) :

| 4

AL Lace 5

Fed. R. Crim. P.:

Rule ll(a)(2) —...... 6 eT a 16

Te sensiaiiial + tel 20, 21, 26

ea aa ae 20, 21

TS sche ittiitieciiialiaiiinsine ES 26

Ee sssnintidiiaaiie 24

Fed. R. Evid. :

Rule 108(a) ......... ne Se ee Pere dees sis 24

Rule 108(a)(2) —....... a i 30

Rule 404 advisory committee note (b) ve 15

Rule 404(b) ............... a silted =m 15, 16

Rule 609 ___.. ienents inciapicindsipiaiiihispeasidiaiiininenadiiinale passim

eT 4, 5, 20

Eee 8, 11, 15

Miscellaneous :

Black’s Law Dictionary (5th ed. 1979) —.................. 10

Comment, Conditioned Guilty Pleas: Post-Guilty

Plea Appeal of Nonjurisdictional Issues, 26

U.C.L.A. L. Rev. 360 (1978) ............................... 17

Emerging Fifth Amendment Doctrine of the

“Preferred Response”, 19 Am. Crim. L. Rev.

CL EE TTT LEE 23, 24, 26, 29, 32

In the Supreme Court of the United States

OCTOBER TERM, 1984

No. 83-912

EDWARD LUCE, PETITIONER

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-

13a) is reported at 713 F.2d 1236.

JURISDICTION

The judgment of the court of appeals was entered

on August 9, 1983. A petition for rehearing was

denied on October 3, 1983 (Pet. App. 14a). The peti-

tion for a writ of certiorari was filed on December 1,

1983, and granted on March 26, 1984 (J.A. 31). The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

STATEMENT

After a j trial in the United States District

Court for the Western District of Tennessee, peti-

tioner was convicted of conspiracy and possession

with intent to distribute cocaine, in violation of 21

U.S.C. 846 and 841(a)(1). He was sentenced to con-

possession. The court of appeals also affirmed their convic-

tions.

2 Dallas Luigs had been introduced to petitioner in the sum-

mer of 1981 (Tr. 44) and had twice purchased cocaine from

him (Tr. 46-49). On one occasion petitioner sold cocaine to

smaller bags containing cocaine (Tr. 70, 207-208).

Memphis police officers watching the parking lot then

arrested James Luigs and Kolofer (Tr. 70, 133-134,

189). Police investigation revealed that no such per-

son lived at the address given. No current driver’s

license was issued to a Richard R. Clark, and agents

were unable to locate any such individval (Tr. 363-

366).

Dallas Luigs from a warehouse in Chicago (Tr. 46). On the

second occasion petitioner flew to Memphis and distributed

cocaine out of the trunk of an automobile parked at the Holiday

Inn (Tr. 48-49). James Luigs also flew to Memphis twice and

sold his cousin cocaine from the trunk of a car parked at the

Holiday Inn (Tr. 50-53).

* As part of its direct case the government introduced a

card bearing petitioner’s fingerprints, taken in December 1978

(Tr. 245; GX 13). Petitioner requested an instruction that the

prints were not taken in connection with a criminal] matter

(Tr. 248), even though they had been taken when petitioner

was picked up for a probation violation (Tr. 337). The court

instructed the jury that it was not to draw any inference from

the fact that petitioner’s fingerprints had been taken previ-

ously (Tr. 250-251).

In December 1981, DEA agents obtained a war-

rant for petitioner’s arrest on the charges involved

in this case. When they went to his office to execute

it petitioner was not there; the agents left word for

i Tr

After a high-speed chase, converging police cars were

able to stop petitioner and effect the arrest (Tr. 374-

377).

2. At trial petitioner filed a motion in limine to

restrict the government from using a 1974 conviction

to impeach him if he chose to testify (J.A. 4-5). In

the motion petitioner asserted that the conviction had

been expunged upon his successful completion of pro-

bation and contended that it was inadmissible under

Fed. R. Evid. 609(a) because it did not involve dis-

honesty or false statement and because its prejudicial

effect outweighed its probative value. In a mid-trial

hearing outside the jury’s presence, counsel reiterated

that either petitioner had been discharged under state

law (see Ill. Ann. Stat. ch. 56%, § 710 (Smith-Hurd

Supp. 1984-1985)), or the prior conviction—al-

legedly for possession of marijuana—had been ex-

punged (Tr. 336; see J.A. 11). The government re-

sponded that it had no evidence of petitioner’s dis-

charge or expungement (J.A. 10). State records did

show that he had been arrested in 1978 for a proba-

tion violation relating to that conviction (Tr. 337-

356). Petitioner did not rebut the government’s con-

tention and introduced no evidence of discharge or

expungement.

Petitioner then argued that the probative value of

this prior conviction for possession of marijuana was

outweighed by its prejudicial effect, and that it

should accordingly be excluded under Rule 609(a)

(1) of the Federal Rules of Evidence (J.A. 11-12).

The court agreed that if the prior conviction was for

the possession of marijuana it would not be suffi-

ciently probative of petitioner’s honesty to be admis-

sible (J.A. 13, 14-15). The government represented,

however, that petitioner had been convicted for pos-

session of a controlled substance under an Illinois

statute that did not include marijuana (Tr. 356-

357; Ill. Ann. Stat. ch. 56%, § 1402 (Smith-Hurd

Supp. 1984-1985)). When petitioner was unable to

rebut the government’s claim, the district court ruled

that a conviction for a controlled substance other

than marijuana was a “crime involving moral turpi-

tude” that fell within the category of permissible

impeachment evidence. Accordingly, it declined to

exclude the prior conviction altogether (J.A. 19-21).

The court noted that “if [petitioner] goes * * * into

other elements, I don’t know anything about drugs, I

have never had any dealing with drugs * * * then the

door is open to the government to go into the matter

of credibility as it relates to the defendant in respect

of a prior conviction or a prior offense” (J.A. 21-22).

* Rule 609 (a) provides:

General rule. For the purpose of attacking the credibility

of a witness, evidence that he has been convicted of a

crime shall be admitted if elicited from him or estabiished

by public record during cross-examination but only if

the crime (1) was punishable by death or imprisonment

in excess of one year under the law under which he was

convicted, and the court determines that the probative

value of admitting this evidence outweighs its prejudicial

effect to the defendant, or (2) involved dishonesty or

false statement, regardless of tiie punishment.

The court ruled, however, that petitioner could give

limited testimony explaining his flight to avoid arrest

without being impeached by his prior conviction (J.A.

16-17, 21-22).

Petitioner chose not to testify at trial. Although he

now claims (Br. 17) that the in limine ruling

“fore[ed]” him to remain off the stand, petitioner did

not assert before the district court that his decision

not to testify was based on the anticipated impeach-

ment, nor did he make an offer of proof or otherwise

outline his proposed testimony.

3. On appea!, petitioner contended that the district

court abused its discretion in denying the motion in

limine without making a specific finding that the pro-

bative value of the prior conviction outweighed its

prejudicial effect. The court of appeals declined to

reach the issue because petitioner had not testified at

trial and his prior convictions accordingly were not

offered into evidence against him. Pet. App. 2a-12a.

The court advanced a number of reasons why a

defendant who chooses not to testify should not be

permitted to challenge the court’s in limine ruling on

appeal.

limine is by definition preliminary, subject to change

by the trial court “for whatever reason,

motion and the lack of any record evidence that he

ve testified had he prevailed on it, petitioner

challenged the ruling before the court of appeals.

That court properly declined to review the ruling.

a motion. When it does, the parties may take the rul-

ing into account as one factor among many in plan-

ning their trial strategy. The decision nonetheless is

only a preliminary indication of how the court ex-

pects to rule. The ruling is subject change if

the court determines that its discretion should be

course of

exercised differently in light of the actual

the trial, and the point may be

tion elects not to introduce the evidence despite a

favorable ruling on the motion in limine. It makes

little sense to treat an in limine ruling as final and

reviewable on appeal when it is recognized as tenta-

tive in the district court. ype te

: ve

testimony, nor can it determine whether any

was harmless.

Any injury that petitioner may claim

limine ruling is accordingly purely speculative. There

court

under

Rule 609(a) (1) outside the concrete context of actual

error

the

admitting evidence of the conviction at trial would

have been error and, if so, whether such an error

would have been harmless similarly cannot be ascer-

tained on this record.

In contrast to the hypothetical injury that peti-

tioner asserts stands the concrete claim of prejudice

that he could have rade had he actually taken the

stand and the evidence been admitted. There is of

course no question but that a ruling actually admit-

ting the prior conviction over petitioner’s objection

would have been reviewable on appeal. Deciding

whether to testify—and thereby to obtain a review-

able evidentiary ruling—is just one of a number of

difficult tactical choices that a defendant must make.

But the fact that it is difficult does not mean that a

defendant must be permitted to escape the conse-

quences of his choice by challenging a preiiminary

ruling without taking the stand. A defendant has no

constitutional right to an in limine ruling, nor does

the erroneous admission of a prior conviction rise to

the level of a constitutional violation. In such cir-

cumstances, there is no persuasive claim to a right to

challenge an in limine ruling on appeal, nor is there

any unfairness in limiting a defendant’s evidentiary

challenges on appeal to evidence that was actually

introduced at trial.

Far from being constitutionally mandated or nec-

essary to ameliorate unfairness, reviewability of in

limine rulings such as the one at issue here would

offer defendants undue opportunity to seek to inject

reversible error without sufficient countervailing ben-

efits to the judicial process. A decision by this Court

that such rulings are reviewable would be seen as an

invitation to defendants to file numerous in limine

motions respecting matters that may in fact not be

critical to their decision whether to testify, in the

hope that one might be erroneously denied and thus

provide the basis for overturning a conviction. One

court of appeals has sought to diminish this risk by

conditioning reviewability on a defendant’s commit-

ment on the record to testify if the motion is granted,

and to make an offer of proof regarding the content

of his proposed testimony—conditions petitioner did

not satisfy. But even these precautions would be of

only limited assistance in discouraging unwarranted

motions, because any such commitment would be un-

enforceable at trial and review of the correctness of

the in limine ruling would remain unduly speculative

in the absence of the defendant’s actual testimony at

trial.

ARGUMENT

THE DISTRICT COURT’S PRELIMINARY RULING

DENYING PETITIONER’S MOTION TO PROHIBIT

CROSS-EXAMINATION ABOUT A PRIOR CONVIC-

TION WAS NOT REVIEWABLE ON APPEAL AFTER

PETITIONER DECLINED TO TESTIFY AT TRIAL

A. The Ruling Was Necessarily Tentative And Any In-

jury To Petitioner Was Purely Speculative

An in limine ruling gives the parties a preliminary

indication of how the court intends to decide an evi-

dentiary question should the evidence actually be

offered at trial.° Such a tentative ruling, even if er-

roneous, cannot in itself provide the type of concrete

injury and complete factual record necessary for

proper review on appeal.

5 “Tn limine” means “[o]n or at the threshold; at the very

beginning; preliminarily” (Black’s Law Dictionary 708 (5th

ed. 1979). While it is sometimes taken to refer only to mo-

tions made before trial, it is often used, as we use it here, to

refer to any motion, whether before or during trial, “to ex-

clude anticipated prejudical evidence before the evidence is

actually offered by the opposing party.” State v. Rodriguez,

126 Ariz. 28, 30, 612 P.2d 484, 486 (1980).

1. In limine motions are commonly used to obtain

advisory rulings on evidentiary issues before the evi-

dence is offered for admission at trial. There is nor-

mally no right to such an advance ruling. See pages

20-22, infra. When an in limine ruling is made, it

may provide useful guidance for the parties, but it is

nonetheless only an advisory determination, subject

to change. See Pet. App. 5a-6a; United States v.

Key, 717 F.2d 1206, 1208 (8th Cir. 1983) (per

curiam). As petitioner acknowledges (Br. 14-15),

the court retains the ability to modify its initial rul-

ing based on the actual course of the trial.

This is particularly necessary in the context of

Rule 609(a) (1), because a court cannot exercise its

discretion in balancing the probative value and prej-

udicial effect of a prior conviction without taking into

account factors that depend on the course of trial,

such as the defendant’s actual testimony and the

decisiveness of his credibility. See United States v.

Key, 717 F.2d at 1208-1209; see generally Luck v.

United States, 348 F.2d 763 (D.C. Cir. 1965); Gor-

don v. United States, 383 F.2d 936 (D.C. Cir. 1967),

cert. denied, 390 U.S. 1029 (1968). For example,

impeachment evidence may assume an unanticipated

relevance where the defendant affirmatively denies

involvement in the sort of activity that was the sub-

ject of a prior conviction.’ See United States v.

Sietenl tindiiahih cnaeh be ihn trite cms mentee te.

tended to admit the prior conviction only in such circum-

stances. The difficulty in determining the district court’s

precise ruling (see J.A. 16-17, 19-20, 21-22) is itself a reason

for precluding review of it on appeal. See New Jersey Vv.

Portash, 440 U.S. 450, 467-471 (1979) (Blackmun, J., dissent-

ing). The court apparently agreed to exclude the prior drug

conviction if the defendant limited his testimony to his flight

before arrest, but said that it would be admitted if the defend-

Gaertner, 705 F.2d 210, 216-217 (7th Cir. 1983);

United States v. Mehrmanesh, 682 F.2d 1303, 1309

(9th Cir. 1982); ef. Walder v. United States, 347

U.S. 62 (1954). It would be anomalous to treat an

in limine ruling as final and reviewable if the defend-

ant does not take the stand even though it is clearly

subject to change if the defendant does indeed testify

and the evidence is offered.’ Cf. United States v.

Toney, 615 F.2d 277, 282 (5th Cir.) (Tjoflat, J.,

concurring) (describing difficulties inherent in con-

sidering an in limine ruling final), cer denied, 449

U.S. 985 (1980). |

2. A number of other factors also contributes to

the necessarily speculative nature of any injury that

may be claimed as a result of an limine ruling. Cf.

Chaffin v. Stynchcombe, 412 U.S. 17, 33 (1973)

(“[s]everal contingencies must coalesce” before in-

jury could occur). Most important, there can be no

assurance that the defendant whose in limine motion

to exclude evidence was denied would actually have

taken the stand had he prevailed on tre motion. See

New Jersey v. Portash, 440 U.S. 450, 467 (1979)

(Blackmun, J., dissenting). In the present case,

“Tt]here is * * * no hint in the record from which

ant denied prior involvement with illegal drugs (J.A. 21-22).

In an important respect, then, the court ruled in favor of peti-

tioner, who made no showing of what his testimony would

have been or, in particular, whether he desired to testify with

respect to any subject other than his flight before arrest.

7 Because in limine rulings are inherently subject to change,

it makes little sense to preclude review, as does the Seventh

Circuit, only where the district court explicitly reserves the

right to reconsider its decision. See United States v. Banks,

687 F.2d 967, 970-972 (7th Cir. 1982), cert. denied, 459 U.S.

1212 (1983).

[a reviewing court] can decide whether Luce was

actually precluded from testifying by fear of im-

peachment” (Pet. App. 8a).

There are in fact several considerations that the

defendant and his counsel must weigh in deciding

whether he should take the stand. See, e.g., Cramp-

ton v. Ohio (decided with McGautha v. California,

402 U.S. 183, 214-216 (1971)); United States v.

Grayson, 438 U.S. 41, 57 (1978) (Stewart, J., dis-

senting). In Brooks v. Tennessee, 406 U.S. 605

(1972), for example, this Court held that it is un-

constitutional to require a defendant to decide

whether to testify before any other defense witnesses

have testified, because of the defendant’s crucial need

of “an opportunity to evaluate the actual worth of

[his] evidence” (id. at 612) in deciding whether he

should take the stand.* See United States v. Cook,

608 F.2d 1175, 1189 (9th Cir. 1979) (en banc)

(Kennedy, J., dissenting in part and concurring in

part) (“the actual conduct of the trial is a sig-

nificant, and legitimate, factor in a defendant’s elec-

tion to testify or remain silent”), cert. denied, 444

U.S. 1034 (1980). Thus, while an in limine ruling

may be an important factor in the defendant’s deci-

sion, it cannot normally be regarded as decisive in

itself. New Jersey v. Portash, 440 U.S. at 467

(Blackmun, J., dissenting) (an accused’s decision

whether to testify “seldom turns on the resolution of

one factor among many”). See also United States v.

LeBlanc, 612 F.2d 1012, 1014 (6th Cir.), cert.

denied, 449 U.S. 849 (1980); cf. United States v.

Pantone, 634 F.2d 716, 723 (3d Cir. 1980). Cer-

tainly it should not simply be presumed to be the

* Here, petitioner in fact called another witness after the

court’s ruling (see Tr. 431).

basis for the defendant’s decision, as petitioner would

have this Court do.

A requirement that a defendant, “by a statement

of his attorney * * * establish on the record that he

will in fact take the stand and testify” (Cook, 608

F.2d at 1186) thus should be a minimum prerequisite

to reviewability—one petitioner cannot satisfy here.

Even that rule, while preferable to requiring no rec-

ord at all, is hardly sufficient to convert a hypotheti-

ca! injury into one concrete enough to support re-

viewability. See pages 30-31 note 22, infra. Because

such an undertaking is unenforceable (see generally

Brooks, 406 U.S. at 613), there can be no assurance

that a defendant has in fact decided not to = ae

solely because of the in limine ruling or that, if the

ruling be reversed, he will take the stand upon re-

trial. Cf. United States v. Spinella, 506 F.2d 426

(5th Cir.), cert. denied, 423 U.S. 917 (1975).

trial to forgo the use of a prior conviction for im-

peachment purposes even though the court has indi-

cated that it would probably admit the evidence.

See generally New Jersey v. Portash, 440 U.S. at 467

(Blackmun, J., dissenting). The prosecutor may, for

example, decide that there is sufficient impeachment

evidence apart from the prior conviction, or that the

defendant’s testimony did not effectively counter his

case. Such forbearance is particularly likely where

the balance between prejudicial effect and probative

value is close, so that there is a real risk of reversal.

In such a situation the prosecutor is more likely to

choose to protect a conviction from attack on appeal

than to introduce evidence that does not appear nec-

essary to his case. See United States v. Cobb, 588

F.2d 607, 613 (8th Cir.), cert. denied, 440 U.S. 947

(1979).

Finally, a prior conviction that a court erroneously

ruled admissible under Rule 609 may properly have

been admissible under a different rationale. For ex-

ample, other crimes may be admitted for a variety of

purposes under Rule 404(b). See, e.g., United States

v. McCollum, 732 F.2d 1419, 1424 (9th Cir. 1984).

Here again, however, the admissibility of the evi-

dence depends in large part on the actual course of

trial. See United States v. Beechwm, 582 F.2d 898,

914 (5th Cir. 1978), cert. denied, 440 U.S. 920

(1979); Note, Other Crimes Evidence at Trial: Of

Balancing and Other Matters, 70 Yale L.J. 763, 771-

773 (1961); Fed. R. Evid. 404 advisory committee

note (b).

3. In view of all of these contingencies, there can

be no assurance that a defendant was actually prej-

udiced by even a demonstrably erroneous in limine

ruling under Rule 609. Appellate review is also prob-

lematic because, in the absence of a concrete record

of a defendant’s trial testimony and the admission of

a prior conviction, an appellate court can neither

review the district court’s exercise of discretion nor

determine whether the error, if any, was harmless.

Appellate review of the balancing required under

Rule 609(a)(1)° is hampered in the absence of a

* Petitioner’s contention (Br. 15) that the district court

“never attempted any balancing” is belied by the court’s rul-

ing that the evidence would be admissible if petitioner denied

prior involvement with drugs (in which case it would have

significant probative value), but not if he limited his testimony

to explaining his flight before arrest (where the probative

value would be less). See J.A. 21-22.

Hin

| :

eller

732 F.2d at 1428-1429 (Reinhardt, J., dissenting)

(concluding that prejudicial effect outweighed pro-

bative value).

In order to determine the effect of error on a trial,

moreover, an appellate court normally must carefully

review a complete factual record.” See United States

*” An exception arises where the error is “case-dispositive,”

Crim. P. 11(a) (2), which now allows conditional guilty pleas

in federal courts, is particularly instructive on the need to

evaluate legal issues in a concrete factual context. Pursuant

to the rule, a defendant may plead guilty yet reserve the right

to challenge certain legal issues on appeal. Both the rule itself,

which requires approval by the prosecutor and the district

trial and that suct leas should not be permitted with respect

to “ ‘issues that cannot be adequately reviewed without a full

trial record.”” United States vy. Curcio, 712 F.2d 1582, 1587

(24 Cir. 1983), quoting United States v. Burns, 684 F.2d 1066,

v. Hasting, No. 81-1468 (May 23, 1983), slip op.

10-13; id. at 4-7 (Stevens, J., concurring in the judg-

ment). For example, where evidence of guilt is over-

whelming or the wrongfully admitted impeachment

evidence is merely cumulative of other evidence, the

error may often properly be viewed as harmless. See,

e.g., Kotteakos v. United States, 328 U.S. 750, 763

(1946); see also United States v. Simpson, 709 F.2d

903, 908 (5th Cir. 1983), cert. denied, No. 83-5496

(Oct. 31, 1983); Government of The Virgin Islands

v. Bedford, 671 F.2d 758, 762 (3d Cir. 1982) ; United

States v. Spero, 625 F.2d 779, 782 (8th Cir. 1980).

When a defendant does not testify, the reviewing

curred. The appeliate court will, however, lack the

factual record necessary to determine whether the

1073 (2d Cir. 1982), cert. denied, No. 82-5609 (Jan. 24, 1983).

See also United States v. Thibadeau, 671 F.24 75, 80-81 (2d

Cir. 1982) ; United States v. Lace, 669 F.2d 46, 57 n.7 (2d Cir.

1982) (Newman, J., concurring), cert. denied, 459 U.S. 854

(1982); Westen, Away From Waiver: A Rationale for the

Forfeiture of Constitutional Rights in Criminal Procedure,

75 Mich. L. Rev. 1214, 1226 (1977); Saltzburg, Pleas of

Guilty and the Loss of Constitutional Rights: The Current

Price of Pleading Guilty, 76 Mich. L. Rev. 1265, 1286 (1978) ;

Note, Conditional Guilty Pleas, 98 Harv. L. Rev. 564, 576 n.54

(1980) ; Comment, Conditioned Guilty Pleas: Post-Guilty Plea

Appeal of Nonjurisdictional lesues, 26 U.C.L.A. L. Rev. 360,

370, 375, 378, 381 & n.101 (1978); D. Epstein & D. Austern,

Crim. Just. Sec. ABA, Uniform Rules of Criminal Procedure:

Comperison and Analysia Rule 444(d) (July 1975) ; cf. United

States v. Cor, 464 F.2d 937, 945 (6th Cir. 1972).

F.2d at 1191 (Sneed, J., dissenting in part and con-

curring in part); United States v. Toney, 615 F.2d

at 281 (Tjoflat, J., concurring). See pages 29-

31 & note 22, infra. A defendant who chooses to tes-

tify, on the other hand, will be entitled to reversal

from manufacturing claims of reversible error.

l.a. Petitioner’s claim (Br. 8-13, 17) that his

stitutional right to testify was infringed by the

court’s in limine ruling is manifestly incorrect. A de-

fendant who testifies is subject to impeachment just

as is any other witness. Jenkins v. Anderson, 447

U.S. 231, 235-236 (1980); Grunewald v. United

a defendant who is subject to impeachment if he

or a deprivation of due

}

;

Hubbard v. Wilson, 401 F. Supp. 495, 498-500 (D.

Colo. 1975); ef. Spencer v. Texas, 385 U.S. 554, 560-

562 (1967) (upholding recidivist statutes under

which jury learns of accused’s prior convictions) ;

Marshall v. Lonberger, 459 U.S. 422, 437-438 & n.6

(1983)."

Significantly, petitioner had no right to a pre-

liminary ruling on the admissibility of the prior con-

viction.” “Neither the fifth and sixth amendments

" For this reason, petitioner's reliance (Br. 9-10) on New

Jersey V. Portash, supra, is wholly misplaced. In Portash, the

Court concluded that use for impeachment purposes of testi-

mony compelled after a grant of immunity violates the con-

stitutional guarantee against self-incrimination (440 U.S. at

459-460). Here, by contrast, petitioner can claim only a viola-

tion of an evidentiary rule that is not of constitutional dimen-

sion. Cf. Middendorf v. Henry, 425 U.S. 25, 48 n.25 (1976)

(exposure to greater punishment in order to receive assistance

over, the Cours in Portash addressed the claim only because the

state court considered it adequately preserved for appeal (440

U.S. at 455). The Court accordingly did not “decide whether

“In criminal cases, pretrial motions may raise “[a)ny de

fense, objection, or request which is capable of determination

without the trial of the general iseve.” Fed. R. Crim. P. 12(b).

Rule 12(e) permits the court “for good cause” to defer ruling

nor the Federal Rules of Evidence impress upon a

trial court a duty to aid the defendant in formulating

his trial strategy regarding the risks of impeachment

that motions under this Rule are a proper subject for defini-

tive pretrial determination under Rule 12(b). Even if they

are, the need to take into account the actual course of trial

would surely constitute “good cause” for deferring the ruling

under Rule 12(e). See United States v. Cook, 608 F.2d at 1190

(Kennedy, J., dissenting in part and concurring in part). Cf.

United States V. Ciampaglia, 628 F.2d 632, 637-638 (ist Cir.),

cert. denied, 449 U.S. 956 (1980) (court must make co-

conspirator determination at close of the evidence).

In United States Vv. Burkhead, 646 F.2d 1283 (8th Cir.),

cert. denied, 454 U.S. 898 (1981), the court of appeals held

that the district court abused its discretion in failing to rule

on an limine motion under Rule 609 because the convictions in

question were on substantive counts charged in the same in-

dictment as the conspiracy charge on which the defendant was

then being tried. The court of appeals recognized that “[i)n

the usual case, the district court * * * has discretion to refuse

to rule in advance of trial on the admissibility of impeachment

evidence,” but declared that “this case falls so far outside the

ordinary situation that the district court's failure to rule * * *

amounted to an abuse of discretion” (646 F.2d at 1285). No

decision of the Eighth Circuit since Burkhead has reversed on

the basis of a failure to rule on a preliminary Rule 609 motion.

See, ¢.g., United States V. Gustafson, 728 F.2d 1078, 1084 (8th

Cir. 1984) ; United States v. Rivers, 693 F.2d 52, 54 (8th Cir.

1982).

Although it is not relevant to the issue here, we note that

the district court's discretion to defer decision is restricted

by Rule 12(e) when the government, rather than the defend-

ant, seeks a pretrial ruling, since the government's “right to

appeal [would ot) rwise be) adversely affected.” Fed. R.

Crim. P. 12(e). See generally United States v. Barletta, 644

F.2d 5 (ist Cir. 1981).

F.2d at 1190 (Kennedy, J., dissenting in

concurring in part); United States v. Tercero,

F.2d 190, 196 (9th Cir. 1980), cert. denied, 449

1084 (1981); United States v. Kahn, 472 F.2d

282 (2d Cir.), cert. denied, 411 U.S. 982 (1973);

United States v. Hickey, 596 F.2d 1082, 1087 (ist

Cir.), cert. denied, 444 U.S. 853 (1979); United

States v. Key, 717 F.2d at 1208; United States Vv.

Johnston, 543 F.2d 55, 59 (8th Cir. 1976).

cok 0 Se, ee ee

testify." Cf. Brady v. United States, 397 U.S. 742,

“ Petitioner’s analogy (Br. 8&9) to Brooks v. Tennessee,

406 U.S. 606 (1972), is inapt. In Brooks, the Court invalidated

750 (1970) (defendant’s decision to take the stand

or face certain conviction is not compelled); Brooks

v. Tennessee, 406 U.S. 605, 614 (1972) (Burger,

C.J., dissenting) (same); United States v. Grayson,

supra (sentencing judge’s consideration of defend-

ant’s false trial testimony does not impermissibly

chill right to testify). See also Selective Service Sys-

tem v. Minnesota Public Interest Research Group,

No. 83-276 (July 5, 1984), slip op. 14; Willia...s v.

Florida, 399 U.S. 78, 84 (1970); Crampton v. Ohio,

402 U.S. at 213-215; Harrison v. United States, 392

U.S. 219, (1968). For all these reasons, the in

limine ruling, even if erroneous, implicated no con-

cerns of constitutional magnitude.”

See generally Jenkins v. Anderson, 447 U.S. at 235-246;

Crampton Vv. Ohio, 402 U.S. at 215; Harris v. New York, 401

U.S. 222 (1971); Brown v. United States, 356 U.S. 148

(1958). Cf. Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978).

The in limine ruling neither compelled petitioner to testify

nor required him to remain silent. It simply informed him of

one of the likely consequences of his decision.

% Petitioner's argument to the contrary “attempts to elevate

a matter of trial tactics to the level of a constitutional ques-

tion” (United States vy. Witschner, 624 F.2d at 844). But even

if the ruling did raise constitutional problems, petitioner would

still not be entitled for that reason alone to present his claim

on appeal after refusing to testify. See Westen & Mandell, To

Talk, to Balk, or to Lie: The Emerging Fifth Amendment

Doctrine of the “Preferred Response,” 19 Am. Crim. L. Rev.

521, 523-527 (1982) (individuals may be required to raise

constitutional claims by procedure that is least burdensome to

the state) ; New Jersey v. Portash, 440 U.S. at 462-468 & n.2

(Powell, J., concurring) (“preferred method” of raising un-

constitutional impeachment claim is for defendant to testify

and appeal from a conviction).

Moreover, there is nothing in Rule 609 itself to suggest that

in limine rulings should be reviewable. Cf. Westen & Mandell,

b. Petitioner’s argument ultimately comes down to

the assertion that the in limine ruling must be re-

viewable because otherwise he would be left with a

difficult choice—whether to take the stand, risk im-

peachment and raise his evidentiary claim on appeal

if he is convicted, or to forgo testifying in the belief

that this would give him the best chance of acquit-

tal."° The argument proves too much, for its logic

would require courts to rule in all cases on in limine

motions brought under Rule 609. Otherwise, de-

fendants would be left with a tactical decision even

more difficult than that faced by petitioner—they

supra, 19 Am. Crim. L. Rev. at 524 (nothing in Fifth Amend-

rent favors any particular procedure for preservation of self-

incrimination claims). The court of appeals’ suggestion to the

contrary in United States v. Cook (608 F.2d at 1184) is plainly

wrong. While Congress presumably intended that appellate

review of Rule 609 rulings be available, there is no indication

that it desired to broaden the availability of such review be-

yond what is normally provided when evidence is actually ad-

mitted over an objection. Indeed, to the extent that the Fed-

eral Rules of Evidence and of Criminal Procedure throw any

light on the question, they suggest simply that review is gen-

erally available only when a party is prejudiced by the ad-

mission of evidence at trial over an objection. See Fed. kh.

Evid. 108(a); Fed. R. Crim. P. 52(a). See also 28 U.S.C.

2111.

16 Petitioner’s argument is that “a preliminary 609(a) (1)

ruling can dictate the course of the entire trial, and, as such,

must be subject to judicial review” (Br. 12). His related as

sertion that his failure to testify should not be construed as

a “waiver” of his claim on appeal (id. at 12-13; see also United

States v. Cook, 608 F.2d at 1184) confuses the concepts of

waiver of a constitutional right and failure to follow proper

procedures for preserving an issue for appeal. See generally

Garner Vv. United States, 424 U.S. 648, 654 n.9 (1976); see

also Westen & Mandell, supra, 19 Am. Crim. L. Rev. at 523.

would have to decide whether to testify and risk im-

peachment without any indication by the ccurt

whether it will admit the evidence in question. But,

as we have made clear, petitioner had no right to an

in limine ruling (pages 20-22, swpra). He accord-

ingly has no right to obtain review of such a ruling,

which provided guidance but was not designed to

eliminate the need for him to face and make what

concededly may have been a difficult decision.

Difficult choices are in any event “a necessary part

of the criminal justice system” (Middendorf v.

Henry, 425 U.S. 25, 48 (1976)), and even though

they may not be “easy or pleasant * * * to make”

(South Dakota v. Neville, 459 U.S. 553, 564 (1983) ),

“the Constitution does not by that token always for-

bid requiring [a defendant] to choose” (Crampton

v. Ohio, 402 U.S. at 213). There is nothing im-

permissible in confronting defendants in the position

of petitioner with the “choice of litigation tactics”

(Jenkins v. Anderson, 447 U.S. at 238) in deciding

whether to testify in order to preserve an evidentiary

claim for appellate review.

As we have demonstrated, a decision to admit a

prior conviction under Rule 609 does not implicate or

burden any constitutional right. This Court has held

in a variety of contexts that government-imposed

choices may properly affect the exercise of constitu-

tional rights. See, e.g., South Dakota v. Neville,

supra (decision whether to take blood-alcohol test) ;

Jenkins v. Anderson, supra (impeachment of defend-

ant by pre-arrest silence) ; United States v. Grayson,

supra (untruthful trial testimony may be considered

at sentencing) ; Corbitt v. New Jersey, 439 U.S. 212

(1978) (lesser punishment available if defendant

pleads non vult rather than exercising right to jury

trial) ; Chaffin v. Stynchcombe, supra (jury may sen-

tence defendant to greater term on retrial after ap-

peal than he received at first trial); Crampton v.

Ohio, supra (capital defendant may be tried at single

proceeding to determine guilt and punishment). A

fortiori, the tactical decision confronting petitioner

here—involving no burden on a constitutional right—

is not prohibited.

Petitioner’s contention that he was influenced in

his decision not to testify by the in limine ruling—

even if accepted—in no way requires that the ruling

be reviewable on appeal. See Brady v. United States,

397 U.S. at 756-757; United States v. Calderon, 348

U.S. 160, 164 n.1 (1954); ef. Strickland v. Washing-

ton, No. 82-1554 (May 14, 1984), slip op. 20. Where

an adequate procedure is available for a defendant to

challenge a ruling, he can legitimately be required to

adhere to that procedure or else to forfeit his claim.

See, e.g., Namet v. United States, 373 U.S. 179, 190

(1963); McMann v. Richardson, 397 U.S. 759, 768

(1970); id. at 782 n.5 (Brennan, J., dissenting) ;

Walker v. City of Birmingham, 388 U.S. 307, 316-

818 (1967); Wainwright v. Sykes, 483 U.S. 72

(1977); Lefkowitz v. Newsome, 420 U.S. 283, 289

(1975); Fed. R. Crim. P. 12(b) and (f); Westen &

Mandell, To Talk, to Balk, or to Die: The Emerging

Fifth Amendment Doctrine of the “Preferred Re-

ponse,” 19 Am. Crim. L. Rev. 521, 523-527 (1982).

For example, where a defendant has entered a guilty

plea, he may not later attack his conviction on the

ground that the plea was influenced by an erroneous

ruling or view of the law." His proper course is “to

'' The exception now provided for conditional guilty pleas is

not applicable to evidentiary claims such as petitioner’s. See

page 16, note 10, supra.

contest his guilt, prevail * * * at trial, on appeal, or,

if necessary in a collateral proceeding, and win ac-

quittal” (McMann v. Richardson, 397 U.S. at 768).

He is not permitted to circumvent the normal ave-

nues of review simply on a claim that a particular

factor influenced his tactical decisions.

An adequate procedure for review was clearly

available here: if petitioner had taken the stand

and the prior conviction had been admitted over his

objection, he could have raised his claim on appeal.

Indeed, Justice Powell, concurring in Portash, clearly

expressed (440 U.S. at 462 (footnote omitted)) the

desirability of presenting claims in this manner:

The preferred method for raising claims such as

Portash’s would be for the defendant to take the

stand and appeal a subsequent conviction, if—

following a claim of immunity—the prosecutor

were allowed to use immunized testimony for

impeachment. Only in this way may the claim

be presented to a reviewing court in a concrete

factual context. Moreover, requiring that the

claim be presented only by those who have taken

the stand will prevent defendants with no real

intention of testifying from creating artificial

constitutional challenges to their convictions.

** Petitioner should have been aware that he might forfeit

his evidentiary claim by not testifying, because prior Sixth

Circuit precedent suggested this result. See United States v.

LeBlanc, 612 F.2d 1012 (6th Cir.), cert. denied, 449 U.S. 849

(1980). Moreover, Justice Powell’s admonition (New Jersey

v. Portash, 440 U.S. at 462-463 n.2 (concurring opinion) ) that

this may be the only proper way to preserve such a claim in

federal courts was available years before petitioner was tried.

In any event, a defendant need not be explicitly advised of the

proper procedure for preserving claims where it should reason-

ably have been evident to him. See United States v. Knox, 396

U.S. 77 (1969) ; United States v. Kordel, 397 U.S. 1 (1970).

can be no claim that such a procedure would

not adequately protect petitioner’s interest in obtain-

review of the court’s evidentiary ruling.” Com-

pare Blackledge v. Perry, 417 U.S. 21 (1974); Fay

v. 272 U.S. 391, 439-440 (1963); Green v.

United States, 355 U.S. 184 (1957). For these rea-

sons, a defendant may legitimately be required to

testify in order to preserve for appeal his challenge

ruling admitting a prior conviction under Rule

The societal interest in the fair and efficient

%” While petitioner may of course have preferred an acquit-

tal at his first trial and toward that end have decided not to

testify, he could not ignore the need to establish a record to sup-

on appeal in the event of a conviction. To the

jis

Fei

as part of his own case). See generally

. Jorn, 400 U.S. 470, 484 (1971) (plurality

‘

‘Hi

tli

‘i

rE |

5 &

ant’s objection.” This requirement is necessary to

“prevent defendants with no real intention of testify-

ing from creating artificial * * * challenges to their

convictions.” New Jersey v. Portash, 440 U.S. at 462

(Powell, J., concurring) (footnote omitted). See also

Pet. App. 7a; United States v. Cook, 608 F.2d at 1191

Such a result would hardly be conducive to the fair

administration of criminal justice." Because of the

difficulties inherent in determining whether an erro-

ant (see pages 11-18, supra), appellate courts could

“become * * * mired in harmless error.’ ” United

States v. Hasting, slip op. 10 (quoting R. Traynor,

The Riddle of Harmless Error 81 (1970)).” See gen-

22 If such rulings are to be reviewable, this Court should at

least make it clear that the burden will be on the defendant to

demonstrate prejudice from the denial of his motion. The

defendant

would thus need to show not only that he would have

testified but for the adverse Rule 609 decision and what

his testimony would have been, but must also meet the

burden of demonstrating that his testimony wouid more

probably than not have altered the jury verdict.

United States v. Cook, 608 F.2d at 1188 (citation omitted)

(Wallace, J., concurring). Cf. United States V. Rivers, 693

F.2d at 54 (defendant seeking an in limine ruling must pro-

duce sufficient facts to enable the court to rule, including a

showing that he will testify if he prevails and what his testi-

mony will be). Accordingly, should the Court decide, contrary

to our position, that in limine rulings may be reviewed on

appeal even when the defendant does not take the stand and

the evidence in question is not admitted, we submit that the

Court should, at a minimum, adopt the requirements set forth

by the court of appeals in United States v. Cook (608 F.2d at

1186) :

[T]o preserve the issue for review, a defendant must at

least, by a statement of his attorney: (1) establish on

the record that he will in fact take the stand and testify

if his challenged prior convictions are excluded; and (2)

sufficiently outline the nature of his testimony so that the

trial court, and the reviewing court, can do the necessary

balancing contemplated in Rule 609.

Cf. Fed. R. Evid. 1083(a) (2) (offer of proof). We emphasize

that such an approach is hardly sufficient to overcome all of

the difficulties raised by reviewability of in limine rulings.

Because a defendant cannot be held to his representation that

he will testify, such a representation will not in itself estab-

lish prejudice. See, e.g., United States v. Lipscomb, 702 F.2d

erally McDonough Power Equipment, Inc. v. Green-

wood, No. 82-958 (Jan. 18, 1984), slip op. 4-6. Un-

less courts scrupulously require that non-testifying

defendants make a clear showing of prejudicial error,

they will often prevail because appellate courts may

prove reluctant to find an error harmless in light of

the necessarily speculative nature of their inquiry.

See Pet. App. 7a; United States v. Cook, 608 F.2d at

1191 (Sneed, J., dissenting in part and concurring in

part); United States v. Toney, 615 F.2d at 281

(Tjoflat, J., concurring). A defendant who testifies,

on the other hand, will often have a more difficult

1049, 1069-1070 (D.C. Cir. 1983) ; United States v. Fountain,

642 F.2d 1083, 1087 n.3 (7th Cir.), cert. denied, 451 U.S. 993

(1981). Moreover, even where a defendant offers the court his

testimony in advance, his actual trial testimony may for a vari-

ety of reasons be different (see Pet. App. 9a n.4; United States

v. Oakes, 565 F.2d 170, 171 (1st Cir. 1977) ). How far the gov-

ernment may go in cross-examining a defendant in advance is

also unclear (United States v. Toney, 615 F.2d at 282 (Tjoflat,

J., concurring) ), even though such cross-examination may be

relevant to the admissibility of the evidence in question.

Should the court rule in defendant’s favor, but for any reason

change the ruling at trial after the defendant has testified, the

defendant “will claim something akin to ‘entrapment’ ” (ibid.).

Cf. United States v. Clark, 732 F.2d 1536, 1541-1542 (11th Cir.

1984) (court changed jury instruction from that accepted at

charge conference). Moreover, the in limine procedures, even

as circumscribed, can provide no assurance that the prosecutor

would in the event actually decide to introduce the challenged

evidence. Finally, even after all the time consumed by a hear-

ing, and even crediting a defendant’s representation that he

would have testified, it will still be difficult to review the cor-

rectness of the ruling and to determine whether, if error, it

actually prejudiced the defendant. United States v. Toney, 615

F.2d at 281 (Tjoflat, J., concurring) ; United States v. Cook,

608 F.2d at 1189 (Kennedy, J., dissenting in part and concur-

ring in part) ).

task in demonstratirg prejudice; indeed, when the

evidence ultimately is not offered, is not admitted, or

is admitted for a concededly proper purpose, he will—

quite properly, of course—have lost his claim on ap-

peal altogether. There is no justification for granting

non-testifying defendants such an advantage over

those who do take the stand. Cf. Westen & Mandell,

19 Am. Crim. L. Rev. at 525 n.13.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

Rex E. LEE