Galati, Stephen L. v. United States ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3667
United States of America,
Plaintiff-Appellee,
v.
Stephen Lee Galati,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 516--James B. Zagel, Judge.
Argued March 27, 2000--Decided August 29, 2000
Before Flaum, Chief Judge, Posner and Williams
Circuit Judges.
Williams, Circuit Judge. Defendant-Appellant
Stephen Lee Galati was convicted of two counts of
bank robbery under 18 U.S.C. sec. 2113(a), for
committing two robberies within one week. He now
challenges his conviction using three separate
arguments concerning evidence and testimony
admitted at trial. First, Galati maintains that
there was insufficient evidence to support the
jury’s guilty verdict. Second, he argues that the
district judge erred in denying his motion to
suppress the out-of-court identifications made by
two bank tellers because the photo array used was
unduly suggestive. Third, Galati contends that
the district court should have permitted his
defense counsel to impeach two of the
government’s witnesses with evidence of their
prior convictions. Alternatively, he challenges
the district court’s decision to sentence him as
a Career Criminal Offender under U.S.S.G. sec.
4B1.1. Because we find none of these arguments
persuasive, we affirm.
I.
Following a brief investigation, on July 27,
1998, Galati was arrested and charged with
committing two separate bank robberies. One of
the robberies occurred on July 1, 1998 at LaSalle
Bank ("LaSalle robbery") and the other occurred
in the same week, on July 6, 1998 at a First
Chicago Bank, located within walking distance of
the LaSalle Bank ("First Chicago robbery").
Galati used the same modus operandi for each
robbery. He walked into the bank, obtained a
savings withdrawal slip and wrote a note which
read, "I have a gun, give me all of your
money."/1 Galati then gave a bank teller the
note and after reading it, the teller handed
Galati money from the bank drawer. Afterwards,
Galati took the money, retrieved his demand note
and left the bank.
At trial, the government presented both direct
and circumstantial evidence that pointed to
Galati as the person who committed both the
LaSalle and First Chicago robberies. Although
neither bank teller made a positive
identification of Galati in the courtroom during
trial, both of them identified Galati when
reviewing a photo line-up. Each teller described
the robber as a white male, who wore a baseball
cap, sunglasses and white shoes. The LaSalle Bank
teller, Monica Fudala ("Fudala") selected a photo
of Galati as one of two out of a group of six
that "resembled" the robber. During the trial,
Fudala identified a pair of sunglasses and blue
shorts belonging to Galati as one’s similar to
those worn by the robber. Seven days after the
First Chicago Robbery, the bank teller, Emily
Batilo ("Batilo") selected Galati from a group of
six photographs. In her view, the other persons
pictured in the photo array either had longer
hair, paler skin, a bigger build, or more facial
hair, unlike the robber.
In addition to the out-of-court identification
of Galati by the bank tellers, the government
offered substantial indirect evidence placing
Galati at each bank on the date and at the time
the robberies occurred. Donald Lucki ("Lucki"),
a recent acquaintance of Galati’s, testified that
he drove Galati to LaSalle and First Chicago Bank
on both the days and around the times when each
robbery occurred. Each time, Lucki said that
Galati went into the bank, returned after ten to
fifteen minutes and upon his return, told Lucki
to drive. Galati did not have an account at
either the LaSalle or First Chicago Banks. During
the week of the robberies, Galati frequently gave
Lucki money, in cash, for purchase of items such
as a cellular phone recharge card or gas. Lucki
kept receipts for many of these purchases,
including ones showing that money was spent on
July 1 and July 6 for these items. Lucki stated
that after one robbery, they had a party during
which pictures of Lucki, Galati, and Galati’s
girlfriend holding up money, were taken. At
trial, the government offered the pictures
corroborating Lucki’s story.
Furthermore, from the surveillance tape of the
robberies, the government obtained pictures of
the robber’s tattoos and after comparing them
with pictures of Galati’s tattoos, found a match.
In addition, the government determined that two
latent palm prints found at LaSalle Bank
immediately following the robbery, from a counter
where the demand note was written, belonged to
Galati. The government also offered testimony
from a salesperson at a store called MacFrugal’s,
Margo Sims ("Sims"), who said she saw Galati try
on and buy a dark baseball cap with a USA logo in
her store on July 6. Lucki confirmed that he
drove Galati to MacFrugal’s on that day and that
Galati purchased a baseball cap. Batilo, the bank
teller from the First Chicago robbery, which took
place on July 6, 1998, noted that the baseball
cap worn by the robber had a USA logo on it.
The government also submitted evidence that
suggested Galati was staying in the area at the
time the robberies took place and that he had
significant amounts of cash available to him
during that time. During the period between June
25 and July 2, 1998, Galati stayed in an Elk
Grove motel, paying cash upon his departure. From
July 1 to July 3, 1998, he stayed at an Arlington
Heights motel and again paid cash. Finally, he
stayed at the O’Hare Hyatt from July 3 to July 6,
1998 and paid the bill in cash before flying to
Florida with his girlfriend. Also at trial, the
government presented a witness who testified that
two days after the First Chicago robbery, Galati
took approximately $2,900, in small bills and
banded bundles, to a nearby Citibank and
exchanged it for travelers’ checks. She
identified Galati from the bank surveillance
tapes.
After a jury trial, Galati was found guilty of
each count charged in the indictment. Following
Galati’s conviction, the district judge denied
Galati’s motion for a judgment of acquittal and
for a new trial. Galati was then sentenced to a
prison term of twenty-one years.
II.
A. Motion for Judgment of Acquittal/New Trial
Galati asks this court to reverse his
conviction, claiming that the district judge
erroneously denied his motion for judgment of
acquittal and for a new trial pursuant to Rule
29(c) of the Federal Rules of Criminal Procedure.
Specifically, Galati argues that the evidence
presented against him was insufficient to support
his conviction. We review a district court’s
denial of a motion for judgment of acquittal and
for a new trial deferentially and will reverse
the lower court only upon a showing that the
court abused its discretion. "We affirm the
district court’s ruling as long as any rational
trier of fact could have found the essential
elements of the crime beyond a reasonable doubt."
United States v. Hach, 162 F.3d 937, 942 (7th
Cir. 1998). Additionally, evidence and inferences
drawn from it are viewed in a light most
favorable to the government. See United States v.
DuPrey, 895 F.2d 303, 310 (7th Cir. 1989).
In assessing the sufficiency of the evidence,
the court will not re-weigh the evidence or judge
the credibility of witnesses. As long as there is
a reasonable basis in the record for the jury’s
verdict, it must stand. See Dallis v. Don
Cunningham & Assocs., 11 F.3d 713, 715 (7th Cir.
1993). Galati contends that without an in-court
identification, the jury’s verdict cannot be
supported by the circumstantial evidence
provided. He is incorrect. First of all, "it is
well established that a jury’s verdict may rest
solely upon circumstantial evidence." United
States v. Robinson, 177 F.3d 643, 648 (7th Cir.
1998); United States v. Todosijevic, 161 F.3d
479, 483 (7th Cir. 1998); United States v.
Stockheimer, 157 F.3d 1082, 1087 (7th Cir. 1998).
Standing alone, the circumstantial evidence the
government presented in this case provides ample
support for the jury’s finding of guilt. Yet, the
circumstantial evidence does not stand alone
here. The government offered both direct evidence
(in the form of the out-of-court identification
by the bank tellers) and circumstantial evidence
at trial.
While neither bank teller was able to identify
Galati in court, they both picked him out of a
photo array as the robber. The out-of-court
identification took place within a week or so of
the robbery, and so in that sense, the out-of-
court identification is likely to be more
reliable than the in-court identification (or
failure to make an in-court identification) which
occurred a year after the robbery. In addition,
there is a tremendous amount of evidence placing
Galati at each robbery. First, Lucki testified
that he drove Galati to both LaSalle and First
Chicago, on the same date and at the same time
that the robberies occurred. He let Galati out of
the car, and after ten to fifteen minutes, Galati
returned with cash. Even though Lucki’s lack of
knowledge about the unlawful purpose of these
trips to the bank seems questionable, the fact
that Lucki could present receipts and photographs
corroborating his story and a lack of motive on
Lucki’s part to lie suggest his truthfulness.
Second, the police matched palm prints found at
LaSalle just after the robbery to Galati’s
prints. Galati did not have an account at LaSalle
Bank and therefore, it is likely that he had no
legitimate reason to visit the bank. Third, the
tattoos of the robber in the surveillance tape
matched Galati’s. Fourth, Sims, the MacFrugal’s
salesperson, identified Galati as the man she saw
trying on and purchasing a hat that resembled the
one worn by the robber later that day.
Although this evidence is probably enough to
support the jury’s guilty verdict, there is even
more evidence linking Galati to the robberies.
The Citibank surveillance tapes show Galati
cashing in small denomination bills for
travelers’ checks. During his stay at several
area hotels, he paid in cash and moved around
three times in a week. The police also linked
clothes found in Galati’s possession to the
clothes that both Batilo and Fudala said the
robber wore and that the surveillance tapes
showed the robber wearing. As such, there is more
than enough evidence to justify the jury’s guilty
verdict. "Reversal is warranted ’only when the
record is devoid of any evidence, regardless of
how it is weighed, from which a jury could find
guilt beyond a reasonable doubt.’" United States
v. Hall and Walker, 212 F.3d 1016, 1024 (7th Cir.
2000) (citing United States v. Garcia, 35 F.3d
1125, 1128 (7th Cir. 1994)). In light of the high
burden the law places on defendants seeking
reversal of a conviction and the substantial
evidence presented by the government, we must
reject Galati’s argument that there was
insufficient evidence to sustain his conviction.
B. Motion to Suppress Out-of-Court
Identification
Next, Galati argues that the district judge
should have suppressed the out-of-court
identification made by Fudala and Batilo, the
bank tellers, because the photo array was unduly
suggestive and the identifications were
unreliable. Ordinarily, we review a district
court’s denial of a party’s motion to suppress
out-of-court identification testimony arising
from a photo array for clear error. See United
States v. Moore, 115 F.3d 1348, 1359 (7th Cir.
1997). However, the government argues that
because Galati failed to renew his motion during
or after trial, the court should review the
decision for plain error only. When he rendered
his decision on Galati’s pre-trial motion to
suppress, the district judge denied the motion to
suppress without prejudice and told Galati to
raise it again during the course of the trial.
The question is whether the district judge’s
invitation (rendering his ruling conditional)
required Galati to renew his objection during
trial or face not preserving the issue for trial.
Wilson v. Williams, 182 F.3d 562, 564 (7th Cir.
1999), specifically holds that "a definitive
ruling in limine preserves an issue for appellate
review--without the need for later objection."
However, "this is just a presumption, subject to
variation by the trial judge, who may indicate
that further consideration is in order." Id.
Under Wilson, the district judge’s ruling was
not definitive. In fact, it was expressly
conditional. When making his ruling, the district
judge said,
[B]ecause it is possible when the witnesses are
done testifying, the nature of the description
and the way it fits in with the photo array might
become significant. . . . We will just have to
face the question of whether, if I find, knowing
more than I know now, that the identification
ought not to be permitted, whether we mistry the
case, whether I instruct the jury to disregard
the identification, or a variety of things.
Tr. at 8. So, we review the district judge’s
decision to admit the photo array identification
evidence for plain error. "Plain error review
under Rule 52(b) allows us to reverse the
district court only if we conclude that: (1)
error occurred; (2) the error was plain; and (3)
the error affected the defendant’s substantial
rights." United States v. Gibson, 170 F.3d 673,
678 (7th Cir. 1999). The district judge found
that on its face, the photo array was not
impermissibly suggestive. We agree. There was no
plain error here.
There is a two-step test for evaluating a
challenge to identification testimony. "Defendant
must first establish that the identification
procedure employed was unreasonably suggestive."
United States v. Funches, 84 F.3d 249, 253 (7th
Cir. 1996). Next, the court must determine
"whether the identification, viewed under the
totality of circumstances, is reliable, despite
the suggestive procedures." Id. Galati maintains
that even though the bank robber had short hair,
with little of it showing underneath the baseball
cap he wore, four of the men pictured in the
photo array shown to the bank tellers had long
hair. He further argues that the four long-haired
individuals looked much older than the men
pictured in the remaining two photos and that
only the two younger looking men were pictured
with chains around their necks. According to
Galati, the chains unfairly suggested that these
two men had criminal records./2 Galati also
contends that of the two younger looking, short-
haired individuals pictured, only one (Galati)
had brown hair like the bank robber; the other
had dark, black hair. Galati believes that with
such an array, containing only one short-haired,
younger looking, brown-haired man with a chain
around his neck, the witnesses had no choice but
to select him from the photo spread.
Despite the alleged discrepancies in appearance
among the different individuals pictured, our own
review of the six photographs used in the array
confirm that it was not unduly suggestive. The
six men pictured all fit the general descriptions
offered by Fudala and Batilo./3 They all appear
to be white men in their 40’s, with dark and
relatively short hair. None of the men have truly
long hair. The differences Galati points to are
not substantial ones. Two of the men appear like
they might be somewhat older and heavier.
However, the differences are not overly
conspicuous and both men still fit the
descriptions given by the witnesses. As such, we
see nothing in the photo array that would have
caused the bank tellers to pick out Galati as
opposed to any of the other five men pictured
(except of course the fact that Galati was indeed
the bank robber in question).
There are several cases with similar facts
where this court has come to the same conclusion.
United States v. Moore, 115 F.3d 1348, 1360 (7th
Cir. 1997) (approving photo array where pictures
were of six young, clean shaven, black males with
some hair, and at least some similar features);
Funches, 84 F.3d at 253 (rejecting defendant’s
claim that line-up was suggestive where he was
oldest, shortest, and weighed the least); United
States v. Sleet, 54 F.3d 303, 309 (7th Cir. 1995)
(approving photo array where six men pictured
were all black men about the same age). Here,
although the men pictured in the photo array do
not all look exactly alike, they do not have to.
"A lineup of clones is not required." United
States v. Arrington, 159 F.3d 1069, 1073 (7th
Cir. 1998). The district court did not commit
plain error by denying Galati’s motion to
suppress Fudala and Batilo’s out-of-court
identification./4
C.Exclusion of Prior Convictions on Cross-
Examination
Galati contends that the district judge erred
in his decision to limit the scope of defense
counsel’s cross-examination of witnesses Lucki
and MacFrugal’s salesperson, Sims. He maintains
that under Federal Rule of Evidence 609(a), he
should have been able to introduce Lucki’s prior
conviction for shoplifting to impeach Lucki’s
credibility. Galati also argues that under Rules
609(a) and 404(b), defense counsel should have
been permitted to admit evidence concerning Sims’
prior conviction for drug possession to impeach
her testimony. We review a district court’s
decision to limit the scope of cross-examination
under an abuse of discretion standard. See United
States v. Hernandez, 106 F.3d 737, 740 (7th Cir.
1997); United States v. Torres, 965 F.2d 303, 310
(7th Cir. 1992).
1. Lucki’s Prior Shoplifting Conviction
Galati claims that Lucki’s shoplifting
conviction shows his dishonesty and that under
Federal Rule of Evidence 609(a)(2), Galati’s
counsel should have been able to impeach Lucki’s
credibility with that information. Rule 609(a)(2)
provides that to attack a witness’s credibility,
a party may present evidence that a witness has
been convicted of a crime involving dishonesty or
false statements. See Fed. R. Evid. 609(a)(2). It
is important however, to keep in mind that "the
purpose of admitting prior arrests or convictions
is not to show that the witness is a bad person
. . . but to impeach his credibility." United
States v. Neely, 980 F.2d 1074, 1079 (7th Cir.
1992).
The district judge held that Lucki’s 1981
shoplifting conviction did not involve deceit so
as to satisfy the requirements of Rule 609(a). A
review of the nature of Lucki’s conviction
suggests that the district judge was correct. As
a nineteen year-old college student, Lucki got
caught shoplifting a cassette tape. The whole
thing cost Lucki less than $35.00 (fine and
restitution) and some time under court
supervision. Galati claims that revealing this
one-time shoplifting episode, which occurred
almost twenty years prior to Lucki’s involvement
in this case, along with other evidence, would
have shown that Lucki was a liar. However, "petty
shoplifting does not, in and of itself, qualify
as a crime of dishonesty under Rule 609." United
States v. Owens, 145 F.3d 923, 927 (7th Cir.
1998).
We have held in United States v. Amaechi, 991
F.2d 374, 378 (7th Cir. 1993), that petty
shoplifting does not qualify as a crime of
dishonesty unless it involves items of
significant value. Lucki’s stolen cassette tape
hardly qualifies. Further, the probative value of
this 20 year old conviction, for a crime
committed when Lucki was a college student is
minimal. See United States v. Reed, 2 F.3d 1441,
1448-49 (7th Cir. 1993). Galati argues that
because Lucki was an important witness for the
government, he really should have been permitted
to impeach Lucki with the prior conviction.
However, Lucki’s role as a key witness does not
change the state of the law. Therefore, the
district judge did not abuse his discretion in
refusing to allow defense counsel to raise
Lucki’s prior conviction.
2. Sims’ prior drug possession conviction
Galati also challenges the district judge’s
decision concerning Sims’ prior drug possession
conviction under Rule 609(a)(1). In 1993, Sims,
the store clerk at MacFrugal’s, was arrested and
convicted for possession of 10 Diazepam tablets
and 2.5 Xanex tablets. Five years later, long
after she had served her sentence of one year
probation, Sims testified that she saw Galati in
MacFrugal’s trying on a baseball cap, identical
to the one worn by the robber, on the same day
the robber was videotaped at the bank wearing a
baseball cap. Galati asserts that Sims’ testimony
is incredible and argues that his defense counsel
should have been permitted to use Sims’ prior
conviction to impeach her testimony. Even though
Sims does not know Galati personally and had only
brief contact with him at the store, Galati
contends Sims had a motive to give untruthful
testimony. He maintains that Sims’ drug
possession conviction shows that she had an
increased motive to please the FBI and give
helpful testimony.
Rule 609(a)(1) admits evidence involving prior
convictions for felonies resulting in significant
jail time or death, as long as the probative
value outweighs prejudicial effect to the accused
and Rule 403 is satisfied./5 Federal Rule of
Evidence 403 states that "although relevant,
evidence may be excluded if its probative value
is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or
misleading the jury, or by consideration of undue
delay, waste of time, or needless presentation of
cumulative evidence." Fed. R. Evid. 403.
The district judge determined that although
Sims’ prior drug possession conviction was a
felony, under Rule 403, it was not admissible.
Frequently, "evidence that a witness has used
illegal drugs may so prejudice the jury that it
will excessively discount the witness’
testimony." Neely, 980 F.2d at 1081 (citing
United States v. Robinson, 956 F.2d 1388, 1397
(7th Cir. 1992)). This would certainly have been
the case here, because Sims’ drug conviction had
little or no bearing on the reliability of her
testimony. As to her ability to perceive the
events in question, the court did allow testimony
that Sims was using Methadone to treat her heroin
addiction. Therefore, jurors had all the
information they needed to consider the effect
Sims’ drug use may have had on her perception at
the time she saw Galati. Her 1993 drug possession
conviction, which resulted in no jail time and
occurred five years prior to her testimony, tells
jurors nothing more about her credibility. The
evidence that Sims was convicted of drug
possession has little probative value, if any. At
the same time, the likelihood of unfair prejudice
was great.
In this case, the district judge wisely gauged
the potential for jurors to see Sims’ prior drug
possession conviction as a reason to discount her
entire testimony, even though nothing about her
conviction actually suggests the likelihood that
she would be dishonest or deceitful. A drug
related offense cannot be admitted "for the sole
purpose of making a general character attack."
Neely, 980 F.2d at 1081 (citing United States v.
Cameron, 814 F.3d 403, 405 (7th Cir. 1987)).
Thus, under Rule 609(a)(2), Sims’ prior
conviction should not have been admitted.
Galati also contends that under Rule 404(b),
Sims’ prior drug possession conviction should
have been admitted to reveal that she had a
unique motive to cooperate with authorities and
to provide information that she might think was
helpful to them. Federal Rule of Evidence 404(b)
provides that "evidence of other crimes, wrongs,
or acts is not admissible to prove the character
of a person in order to show action in conformity
therewith." Fed. R. Evid. 404(b). However, the
rule creates an exception whereby evidence of a
witness’s other crimes or acts may be admissible
to prove motive. Id.
The truth of the matter is that Sims’ prior drug
conviction reveals little about her motive to
cooperate. We fail to see how Sims’ prior
conviction would give her a motive to lie about
seeing Galati purchase a hat at MacFrugal’s. Sims’
conviction occurred approximately five years prior
to her involvement in the case. Furthermore, Sims
was only an occurrence witness, with no real reason
to lie. Sims did not witness the defendant engaged
in illegal behavior such that she would be
compelled to inform authorities about his behavior.
In fact, she reported seeing Galati only after the
manager called her over to speak with FBI agents
who were investigating the bank robberies.
Sims was asked to review a photo spread to
determine if anyone from the six pictures had
been in the store recently. After examining the
photo line-up, she identified Galati. She
testified that while she was taking down Fourth
of July merchandise in the store, she noticed
Galati picking out a baseball hat with a USA
logo. It is far-fetched to think that because
Sims was convicted of drug possession, she would
be driven to lie about having seen Galati, just
to cooperate with authorities. Sims’ prior drug
possession conviction does not prove that her
testimony was tainted by an unpure motive.
Therefore, it was properly excluded under Rule
404(b) as well.
Since neither Lucki’s shoplifting conviction nor
Sims’ drug possession conviction shed any real
light on either witness’s credibility, we find
that the district judge did not abuse his
discretion in granting the government’s motion in
limine.
D. Career Criminal Enhancement
In light of a 1981 conviction for armed robbery
in state court and other prior convictions for
crimes of violence, Galati was sentenced as a
Career Criminal Offender under U.S.S.G. sec.
4B1.1. Galati does not argue that sec. 4B1.1 was
wrongly applied. Instead, he contends that under
the Fifth Amendment Due Process Clause, the
government should have been required to submit
information detailing the basis for any sentence
enhancement, prior to trial, as it must do under
21 U.S.C. sec. 851./6 In overruling Galati’s
objection to his sentence, the district judge
held that sec. 851 did not apply to Galati’s
sentence enhancement and due process did not
require it to apply. This is a settled question.
Constitutional due process does not require that
the government inform Galati, before trial, that
it would pursue a higher sentence in light of his
prior armed robbery conviction.
In United States v. Damerville, 197 F.3d 287,
289 (7th Cir. 1999), we held that defendants
subject to sentencing as career offenders under
sec. 4B1.1 "are not entitled to the same
procedural protections as defendants subject to
the sec. 841(b) penalty enhancements (for which
sec. 851 applies)." See also, United States v.
Jackson, 121 F.3d 316, 319 (7th Cir. 1997);
United States v. Robinson, 14 F.3d 1200, 1206
(7th Cir. 1994). "The filing of an enhancement
information before entry of a guilty plea, while
mandated by sec. 851 to trigger enhancement under
sec. 841(b), is not a prerequisite when the
government seeks career offender sentences under
the guidelines." Damerville, 197 F.3d at 289.
Galati’s sentence was enhanced under sec. 4B1.1,
not sec. 841(b) and the only due process required
was provided when Galati received the pre-
sentence investigation report containing the
recommendation for a sec. 4B1.1 enhancement. Id.
at 290. The procedural requirements of sec. 851
simply do not apply to ordinary sentence
enhancements under the Guidelines. Therefore, we
conclude that the district court did not err in
sentencing Galati as a career offender under sec.
4B1.1.
III.
For the reasons set forth above, we AFFIRM the
judgment of the district court.
/1 During the First Chicago robbery, the note Galati
wrote varied only slightly. It read, "Give me all
the money, I have a gun."
/2 A close look at the photo array suggests that
three of the individuals pictured were wearing
chains.
/3 Fudala described the bank robber as a white male
in his late thirties or early forties, with dark
colored, neatly cut, short hair, about 5’10"-6’
tall and approximately 170-180 pounds. Batilo
described the robber as a white male in his
forties, about 5’9"- 5’10" tall, with possibly
brown hair, a tan complexion and a medium build.
/4 Once the court determines that the challenged
identification was not the result of an unduly
suggestive photo array, it need not consider
whether or not the identification itself was
reliable. Sleet, 54 F.3d at 309.
/5 Galati also suggests that Rule 609(a)(2) applies.
It does not. Rule 609(a)(2) admits evidence
involving prior convictions for any crime
implicating dishonesty or false statements. The
drafters of the Rules of Evidence sought to limit
Rule 609 to crimes involving "some element of
misrepresentation or other indication of a
propensity to lie and excluding those crimes
which, bad though they are, do not carry with
them a tinge of falsification." Amaechi, 991 F.2d
at 378 (citation omitted). A person’s past drug
possession does not necessarily implicate
dishonesty and this court has rejected the
argument that "people who have used drugs are
more likely to tell lies." Neely, 980 F.2d at
1081. Therefore, we find that Rule 609(a)(2) does
not apply here.
/6 Section 851 applies to defendants convicted of
drug conspiracy under 21 U.S.C. sec. 841 and
provides that if the government intends to seek
increased punishment because of a defendant’s
prior conviction, "the United States attorney
[must file] an information with the court . . .
stating in writing the previous convictions to be
relied upon." 21 U.S.C. sec. 851.