IN THE UNITED STATES DISTRICT COURT NORTHERN DIVISION … · 2019. 12. 1. · By: s/ Theodore M. Cooperstein Theodore M. Cooperstein (NY#2236487) Assistant United States Attorney

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION

UNITED STATES OF AMERICA

v. CRIMINAL NO. 3:19-CR-20-CWR-LRA

WILLIAM B. MCHENRY, JR.

GOVERNMENT’S MOTION IN LIMINE PURSUANT TO RULE 609 AND NOTICE OF INTENT TO USE EVIDENCE OF PAST CONVICTIONS

The United States, by its undersigned Assistant United States Attorney, hereby submits

this Motion in Limine and Notice and herein advises Defendant of its intention to introduce

evidence of past convictions, pursuant to Federal Rule of Evidence 609, at Trial.

At trial, the Government intends to introduce evidence that

(1) On or about September 17, 1984, Defendant pled guilty and was sentenced in Shelby

County, Tennessee, for Passing Bad Checks Under $200;

(2) On or about October 1, 1992, Defendant pled guilty and was sentenced in Cause No. 91-4-

459, in Hinds County, Mississippi, for False Pretense (Bad Checks); and

(3) On or about October 1, 1992, Defendant pled guilty and was sentenced in Cause No. 91-4-

460, in Hinds County, Mississippi, for False Pretense (Bad Checks).

(Attachment 1: Certified Judgment & Convictions).

Under Federal Rule of Evidence 609(a)(2), introduction of evidence of conviction of any

witness for offenses involving a dishonest act or false statement is permitted, regardless of the

punishment. The Fifth Circuit holds “ ‘dishonesty and false statement’ means crimes such as …

Case 3:19-cr-00020-CWR-LRA Document 37 Filed 12/01/19 Page 1 of 5

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false statement, criminal fraud, … or false pretense, or any other offense in the nature of crimen

falsi, the commission of which involves some element of deceit, untruthfulness, or falsification

bearing upon the accused’s propensity to testify truthfully.” United States v. Ashley, 569 F.2d 975,

979 (5th Cir. 1978); accord, United States v. Pruett, 681 F.3d 232, 236 (5th Cir. 2012); Seibert v.

Jackson Cnty., Miss., 2015 WL 5125522 (S.D. Miss. Sept. 1, 2015) (Starett, Dist. J.). Convictions

under paragraph (a)(2) are always admissible. United States v. Jefferson, 623 F.3d 227, 233-35

(5th Cir. 2010); “the admission of prior convictions involving dishonesty and false statement is

not within the discretion of the Court.” FED. R. EVID. 609, advisory committee’s note to subsection

(a) (quoted in Jefferson, 623 F.3d at 235).

“[T]heft-by-check convictions fall under Rule 609(a)(2) because they have as an element

‘an act of dishonesty or false statement by the witness.’ Crimes qualifying for admission under

Rule 609(a)(2) are not subject to Rule 403 balancing and must be admitted.” United States v.

Harper, 527 F.3d 396, 408 (5th Cir. 2008); see United States v. Toney, 615 F.2d 277, 279-80 (5th

Cir. 1980).

Rule 609(b) prohibits the introduction of evidence of past convictions for impeachment

purposes, if the convictions are more than ten years old, unless the court determines, in the interest

of justice, that the probative value of the conviction supported by specific facts and circumstances

substantially outweighs the prejudicial effect. FED. R. EVID. 609(b). There is a presumption

against the use of prior crime impeachment evidence over ten years old; such convictions will be

admitted very rarely and only in exceptional circumstances. E.g., United States v. Pope, 132 F.3d

684 (11th Cir. 1998). “Rule 609(b)’s ten-year limit applies as a separate test of all convictions,

even ones where ‘it readily can be determined that establishing the elements of the crime required

proof or admission of an act of dishonesty or false statement by the witness.’” United States v.


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Charles, 366 F. App’x 532, 541 (5th Cir. 2010); United States v. Hamilton, 48 F.3d 149, 154 (5th

Cir. 1995); Olin v. Certain Underwriters at Lloyds London Market Ins. Cos., 468 F.3d 120 (2d

Cir. 2006).

Several relevant factors are to be considered when deciding whether to admit evidence

pursuant to Rule 609(b):

1. The impeachment value of the prior crime;

2. The point in time of the conviction and the witness’s subsequent history;

3. The similarity between the past crime and the charged crime;

4. The importance of the defendant’s testimony; and

5. The centrality of the credibility issue.

United States v. Pritchard, 973 F.2d 905, 909 (11th Cir. 1992) (citing United States v. Sloman,

909 f.2d 176, 181 (6th Cir. 1990)). The standard of review of a district court’s decision to admit

evidence of prior convictions pursuant to Rule 609(b) is abuse of discretion. Jefferson, 623 F.3d

at 233; Pritchard, 973 F.2d at 908; Seibert, 2015 WL 5125522 at *3.

In the present instance, the probative value of Defendant’s past criminal convictions

outweighs any prejudicial effect. The prior conviction is “not so similar to the charged [securities

and commodities fraud and wire fraud] that it create[s] an unacceptable risk that the jury would

improperly consider the [bad checks offenses] as evidence that” Defendant committed the

securities and wire frauds. Pritchard, 973 F.2d at 909. Defendant’s earlier bad checks convictions

are probative to show the Defendant’s notice and disregard for the law, motive, opportunity, as

well as absence of mistake or lack of accident, in his obtaining value from others without proper

exchange of consideration, as well as disregard for truth and veracity of his representations, half-

truths, and omissions. Therefore it is directly relevant to the present case, which charges him with


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securities and commodities fraud and wire fraud, all counts requiring a knowing state of mind and

absence of mistake or misunderstanding.

“When a defendant is advised of a charge against him, and asked to plead to it, his response

that he is ‘guilty’ constitutes an admission. He has made a most solemn statement that he has acted

as charged.” If, “the same person denies having done these acts, he is subject to impeachment by

his prior statement (plea of guilty) inconsistent with the later denial.” United States v. Williams,

642 F.2d 136, 139 (5th Cir. Unit B 1981). If Defendant testifies in his defense, the Court should

therefore permit the Government to use the past convictions for impeachment on cross

examination.

CONCLUSION

For the foregoing reasons, the United States respectfully requests that this Court grant the

Government’s motion and permit the Government to introduce the evidence of past convictions

described in this motion.

Respectfully submitted,

D. MICHAEL HURST, JR. UNITED STATES ATTORNEY By: s/ Theodore M. Cooperstein Theodore M. Cooperstein (NY#2236487) Assistant United States Attorney [email protected] United States Attorney’s Office 501 East Court Street, Suite 4.430 Jackson, Mississippi 39210 Telephone No.: (601) 965-4480 Attorney for the United States


mailto:[email protected]

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CERTIFICATE OF SERVICE

I, Theodore M. Cooperstein, Assistant United States Attorney, hereby certify that on

December 1, 2019, I electronically filed the foregoing document with the Clerk of the Court, which

provides notice to all counsel of record.

/s/ Theodore M. Cooperstein_____ THEODORE M. COOPERSTEIN Assistant United States Attorney


Case 3:19-cr-00020-CWR-LRA Document 37-1 Filed 12/01/19 Page 1 of 5





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IN THE UNITED STATES DISTRICT COURT NORTHERN DIVISION … · 2019. 12. 1. · By: s/ Theodore M. Cooperstein Theodore M. Cooperstein (NY#2236487) Assistant United States Attorney