United States v. Redditt, Lynn M. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2006
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LYNN M. REDDITT,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 01 CR 880—John F. Grady, Judge.
____________
ARGUED JANUARY 13, 2004—DECIDED AUGUST 20, 2004
____________
Before BAUER, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. A jury found former postal worker
Lynn Redditt guilty of one count of stealing mail, 18 U.S.C.
§ 1709, and one count of opening mail, id. § 1703(a). On
appeal Redditt challenges two evidentiary rulings. Any
evidentiary errors made by the district court were harmless,
so we affirm.
I.
On March 30, 2001, eleven pieces of opened mail were
found in and around a public garbage can approximately
one block from Redditt’s home in Chicago. Postal inspectors
2 No. 03-2006
discovered that ten of the items were addressed to locations
within the delivery area of the Nancy B. Jefferson Station
(the “Jefferson Station”)—located approximately eight miles
away—and were intended for delivery on March 26. The
eleventh piece of mail was a greeting card; although a first-
class stamp was affixed to the card, the card had not yet
been processed at a post office processing facility.
At the time Redditt was working as a mail carrier at the
Jefferson Station. Postal inspectors confirmed that most of
the mail was intended for delivery on Route 1 and that
Redditt was the only carrier assigned to deliver mail on
Route 1 on March 26. Although some of the opened mail was
intended for delivery on Route 2, postal inspectors learned
that the carrier assigned to deliver mail to Route 1 often
assisted with the delivery of mail to Route 2 because the
two routes were intertwined.
Eventually Redditt admitted to stealing and opening the
mail. Redditt explained that on March 26 she had separated
out mail she thought might contain cash. She opened the
items after making her assigned deliveries but while still on
duty. She related that she took $20 from one of the
letters—although she could not recall which one—and used
it to purchase food on her way home from work. Finally,
Redditt detailed, she placed the mail in a garbage can on
her way home. At the conclusion of the interview, Redditt
provided the inspectors with a handwritten confession.
Following the interview, however, Redditt recanted and,
after she was charged, moved to suppress the statements
she made to the inspectors and her written confession. At
the suppression hearing, Redditt explained that she was on
vacation on the days the mail should have been delivered.
Redditt acknowledged providing a written confession, but
she maintained that she confessed only after one of the
postal inspectors coerced her into doing so by yelling at her,
striking the table, and threatening to write a more incrim-
No. 03-2006 3
inating confession if she refused to write one herself.
Redditt also insisted that she had confessed without being
able to read or understand her waiver of rights. The district
court found Redditt’s testimony not credible and refused to
suppress the confession, a ruling Redditt does not appeal.
Before Redditt testified at trial the government moved in
limine for permission to impeach her with a prior conviction
in the event she should testify. In March 1992, Redditt was
convicted in state court of unlawful interference with a
public utility, also known as theft of electricity, resulting in
a one-month term of probation. The government also sought
leave to introduce an employment application Redditt com-
pleted in July 1995, falsely stating that she had never been
convicted of a crime.
The district court noted that, because Redditt’s conviction
was more than ten years old, the primary consideration was
whether its probative value substantially outweighed its
prejudicial effect. Nevertheless, the judge withheld ruling on
the government’s request until after he heard Redditt’s
testimony:
If, for instance, [Redditt’s] disagreement with the gov-
ernment testimony is minor, then I think this evidence
would be overkill, and its probative value would be
outweighed by the prejudicial impact. If on the other
hand, she denies that she committed the thefts and de-
nies that she made the statements and claims she was
coerced and so on so she got a 180-degree difference
from the government witnesses, then this may well be
a situation where the probative value of this untruth-
fulness would outweigh its prejudicial impact.
On direct examination Redditt testified as she had at the
suppression hearing that she did not open the mail; she
admitted, however, that she worked on the day the mail
should have been delivered. At the conclusion of direct
examination, the judge granted the government’s motion to
4 No. 03-2006
impeach Redditt with her prior conviction and her failure to
disclose the conviction on her 1995 employment application.
The judge stated that “the probative value of the previous
act of dishonesty, the conviction for it and the false state-
ment, or the apparently false statement, on the application
has a probative value that exceed [sic] its prejudicial
impact, in light of the complete contradiction between the
defendant’s testimony and the testimony of the government
witness.”
On cross-examination Redditt’s denials continued. When
the government asked her about the conviction for theft of
electricity, Redditt acknowledged that she had been charged
with the crime but denied ever being convicted or punished.
Redditt explained that she believed the charge had been
dropped. The government also asked Redditt about the
employment application, pointing out that on the applica-
tion Redditt stated that she had never been convicted of a
crime. This time Redditt did not deny that she had been
convicted of a crime; instead, she eventually admitted filling
out the application but submitted that someone else must
have altered her answer to show that she had never been
convicted of a crime. The government moved to introduce
the employment application into evidence. The judge asked
defense counsel if he had any objections, and counsel
replied that he had none. At the end of Redditt’s testimony,
the district court gave the jury a limiting instruction
concerning Redditt’s prior conviction:
Let me explain to the jury that the relevance of the prior
conviction, if there was one and I am not commenting one
way or the other, is only in regard to the credibility of Ms.
Redditt as a witness in this case. She is obviously not be-
ing tried in this case for any matter back in 1992 having
to do with electricity. The only significance of that evi-
dence is as it may have some bearing on her credibility as
a witness.
No. 03-2006 5
At the conclusion of the trial, the jury returned guilty
verdicts on both counts. The district court sentenced Redditt
to sixteen months’ imprisonment, two years’ supervised re-
lease, $20 in restitution, and $200 in special assessments.
II.
On appeal Redditt argues that the district court erred in
permitting the government to use the 1992 conviction and
the 1995 employment application for impeachment, and in
permitting the government to introduce the employment
application into evidence. With regard to the 1992 convic-
tion, Redditt contends that the district court’s decision vio-
lated Federal Rule of Evidence 609. Redditt also submits
that the decisions to allow impeachment with the employ-
ment application and to admit the document into evidence
violated Federal Rule of Evidence 608. Redditt argues that
neither decision was harmless and requests a new trial. We
review a district court’s evidentiary rulings for abuse of
discretion. See United States v. Johnson, 248 F.3d 655, 664
(7th Cir. 2001).
Because Redditt’s conviction for stealing electricity was
more than ten years old, it was admissible under Rule 609(b)
only if the court could determine “that the probative value
of the conviction . . . substantially outweighs its prejudicial
effect.” Fed. R. Evid. 609(b); see Stutzman v. CRST, Inc.,
997 F.2d 291, 298-99 (7th Cir. 1993). As we noted recently
in United States v. Fallon, 348 F.3d 248 (7th Cir. 2003), the
purpose of Rule 609 is to ensure that “‘convictions over 10
years old will be admitted very rarely and only in excep-
tional circumstances.’” Id. at 254 (quoting United States v.
Shapiro, 565 F.2d 479, 481 (7th Cir. 1977)). Still, we will
uphold a district court’s decision to admit a conviction over
ten years old as long as the record shows that the district
court thoughtfully analyzed the facts and properly weighed
the probative value of the evidence against its prejudicial
6 No. 03-2006
effect. See Stutzman, 997 F.2d at 299; United States v. Ras,
713 F.2d 311, 318 (7th Cir. 1983).
Here, the district court did not err in admitting the evi-
dence regarding Redditt’s 1992 conviction. Before Redditt
testified, the district court correctly acknowledged that the
relevant question under Rule 609(b) was whether the
probative value of the conviction substantially outweighed
its prejudicial effect. And when the judge actually ruled on
the admissibility of the prior conviction, he properly noted
that Redditt’s credibility was a critical factor in the case “in
light of the complete contradiction between the defendant’s
testimony and the testimony of the government witness.”
Consequently, the district court judge did not abuse his
discretion when he determined that the probative value of
the 1992 conviction outweighed any prejudicial effect.
But even if the district court erred in permitting the gov-
ernment to impeach Redditt with her 1992 conviction, the
error would not require reversal. An evidentiary error requires
reversal only if the error had “a substantial and injurious
effect or influence on the jury’s verdict.” United States v.
Woods, 301 F.3d 556, 562 (7th Cir. 2002) (quotation marks
and citation omitted). We will find an evidentiary error harm-
less if the court provides a curative instruction, United States
v. Bonner, 302 F.3d 776, 782 (7th Cir. 2002), or if the evi-
dence against the defendant is otherwise overwhelming,
Woods, 301 F.3d at 562.
Here, the district court provided a limiting instruction and
the government’s case against Redditt was particularly
strong. At the conclusion of the trial the judge informed the
jury that evidence about Redditt’s 1992 conviction was rele-
vant only to her credibility as a witness. And the evidence
against Redditt was overwhelming: most of the opened mail
pieces were sent to addresses on Redditt’s delivery route, they
were scheduled for delivery on a day that Redditt worked,
and they were discovered in a public garbage can close to
No. 03-2006 7
Redditt’s home but far from the delivery route. One of the
other items had not yet been processed for delivery; the gov-
ernment submitted evidence from a person whose return
address was on the envelope, and she related that she had
enclosed $20 in an envelope and had handed it to a mail
carrier and that the envelope never reached its intended
destination. And although Redditt later disclaimed her con-
fession, her recantation was countered by the testimony of
three postal inspectors.
Redditt also contends that the district court erred in per-
mitting the government to use her 1995 employment appli-
cation for impeachment, and in permitting the admission of
the application into evidence. Under Rule 608(b), specific
instances of conduct used to attack a witness’ character may
be inquired into on cross-examination if probative of
truthfulness or untruthfulness. Fed. R. Evid. 608(b); see
Young v. James Green Mgmt., Inc., 327 F.3d 616, 627 (7th
Cir. 2003). Such conduct, however, may not be proved by ex-
trinsic evidence. Fed. R. Evid. 608(b); see Young, 327 F.3d
at 626-27. Because Redditt failed to identify her conviction
on the employment application, the document was relevant
to her character for truthfulness. Thus, the district court
properly allowed the government to question her about the
statements she made on the employment application. See
Young, 327 F.3d at 627.
But Rule 608(b) specifically prohibits the use of extrinsic
evidence to prove specific instances of conduct, and at trial
Redditt’s counsel should have objected to the government’s
request to admit the document into evidence. The govern-
ment contends that Redditt waived this argument by failing
to object at trial. Redditt argues that she objected to the
admission but submits that, alternatively, she merely for-
feited the argument. “Forfeiture is the failure to make the
timely assertion of a right, while waiver is the intentional
relinquishment or abandonment of a known right.” United
States v. Cooper, 243 F.3d 411, 415-16 (7th Cir. 2001); see
8 No. 03-2006
United States v. Olano, 507 U.S. 725, 733 (1993). When trial
counsel affirmatively represents that he has no objection to
the admission of certain evidence, he has intentionally
waived any argument to the contrary. United States v.
Pittman, 319 F.3d 1010, 1012 (7th Cir. 2003).
Here, Redditt’s trial counsel affirmatively stated that he
had no objection to admitting the employment application.
When the government sought to question Redditt about the
1992 conviction and the 1995 employment application, trial
counsel raised objections. But after the government moved
to introduce the application into evidence, the judge asked
defense counsel whether he had any objections. Counsel
replied: “No, judge.” Since defense counsel intentionally de-
cided not to object to the admission of the employment
application, Redditt has waived any challenge on appeal. Id.And since a finding of waiver precludes appellate review,
United States v. Reyes, 365 F.3d 565, 567 (7th Cir. 2003), we
cannot review the district court’s decision to admit the
employment application into evidence.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-20-04