United States v. Daniel Osazuwa, Jr. ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-50244
Plaintiff-Appellee,
v.  D.C. No.
CR-00414-DSF-1
DANIEL OSAZUWA, JR.,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted
February 2, 2009—Pasadena, California
Filed May 7, 2009
Before: Harry Pregerson, Susan P. Graber, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Graber
5365
UNITED STATES v. OSAZUWA 5367
COUNSEL
Elizabeth A. Newman, Deputy Federal Public Defender, Los
Angeles, California, for the defendant-appellant.
5368 UNITED STATES v. OSAZUWA
David P. Kowal and Benjamin R. Barron, Assistant United
States Attorneys, Criminal Division, Los Angeles, California,
for the plaintiff-appellee.
OPINION
GRABER, Circuit Judge:
Defendant Daniel Osazuwa was convicted of assaulting a
federal prison guard while he was incarcerated for failing to
pay restitution associated with a bank fraud conviction.
Defendant and the guard, who were the only two eyewit-
nesses, unsurprisingly offered different accounts of the
events. The government cross-examined Defendant concern-
ing his veracity. Defendant challenges the government’s use,
as impeachment evidence, of the facts underlying his bank
fraud conviction. We hold that the district court abused its
discretion in admitting that evidence and, accordingly, reverse
and remand for a new trial.
FACTUAL AND PROCEDURAL HISTORY
Defendant was convicted of bank fraud in 2003. He was
sentenced to one day in jail, restitution, and a period of super-
vised release. His supervised release was revoked in 2007 for
failure to pay restitution and, consequently, he was sentenced
to 90 days of incarceration at the Metropolitan Detention Cen-
ter (“MDC”) in Los Angeles.
The incident in question occurred three weeks before
Defendant’s scheduled release date. Defendant had been
transferred to a transitional unit for inmates whose releases
were imminent. Officer Oscar Medina testified at trial that,
sometime in the morning, he saw Defendant wearing green
prison clothing, rather than the khaki clothing that inmates in
the transitional unit are required to wear. Medina asked
UNITED STATES v. OSAZUWA 5369
Defendant to change into khaki clothes. The next time Medina
saw Defendant, he was still wearing green clothing, so
Medina again asked him to change. Shortly thereafter, Medina
saw Defendant grab a loaf of bread from the kitchen, which
was against MDC’s rules. Medina shouted at Defendant to
drop the bread, which Defendant did. Medina testified that
Defendant cursed at him, but Defendant denied swearing at
Medina. Medina called MDC’s Activities Lieutenant, who
instructed Medina to secure Defendant in his cell so that the
Lieutenant could question him about the incident. Another
lieutenant checked Defendant’s disciplinary record and
reported to Medina that Defendant was a “moderate inmate
without any prior incidents.” When the Activities Lieutenant
did not arrive, the second lieutenant gave Medina permission
to unlock Defendant’s cell and explain to him that he would
be placed in official lockdown status if he refused to change
his clothing.
From this point on, Defendant’s and Medina’s versions of
the events diverge considerably. Medina testified that when
he entered the cell, Defendant stood up and clenched his fists
in a fighting position, prompting Medina to activate his body
alarm to call for assistance. Medina stated that Defendant
“launched” forward and threw two punches, the second of
which hit Medina in the back of the head when he turned his
face to avoid being hit. Medina responded with a “bear hug”
to stop the punches, but Defendant moved forward and
Medina lost his footing, causing both men to fall. Medina hit
his head on the cell floor and blacked out for a few seconds.
When he came to, he testified, Defendant was spitting on him.
Medina got up, pinned Defendant to the cell wall, and let the
officer who arrived to assist Medina in removing Defendant
from the cell. Medina suffered a bruised rib, a swollen hand,
and a cut behind his ear.
By contrast, Defendant testified that Medina was frowning
when he entered the cell, so Defendant walked toward him.
Medina was talking fast, so Defendant patted him and told
5370 UNITED STATES v. OSAZUWA
him to relax. Medina responded to the patting by hitting
Defendant’s hand back. In Defendant’s version, Medina wob-
bled while pushing Defendant’s hands away and grabbed
Defendant’s shirt for balance, causing both men to fall.
Defendant denied ever punching Medina, “launching” for-
ward at him, or spitting in his face.
On direct examination, Defendant was asked what sentence
of incarceration he had received for his 2003 bank fraud con-
viction. Defendant truthfully answered that he was sentenced
to, and served, one day in jail. On cross-examination, the gov-
ernment asked a series of questions related to the dishonest
conduct that led to Defendant’s bank fraud conviction:
Q: Mr. [Osazuwa,] you have been convicted of
lying before, haven’t you?
A: Lying?
Q: Yes. Lying.
A: I wouldn’t — I don’t understand. Could you —
Q: Lying means you don’t tell the truth.
A: I can’t — I pled — I plead [sic] to fraud, yes,
but not lying.
Q: Well, weren’t you lying as part of your bank
fraud?
A: To whom?
Q: Well, you tell us.
A: Tell you?
Q: To anyone. Who were you lying to as part of
your bank fraud, sir?
UNITED STATES v. OSAZUWA 5371
A: Oh, to the bank, yes.
Q: To the bank?
A: Yes.
Q: So you did lie to the bank?
A: Yes. To —
Q: To get some money; right?
A: Yes.
Q: In fact, you lied about who you were to the
bank to get some money; right?
A: Yes.
Q: You presented a bank in Ohio with a Visa card
in another person’s name; correct?
[DEFENSE COUNSEL]: Your Honor, I am going
to object to the extent of this. I think the prosecutor
can ask the fact of the conviction, but nothing more.
THE COURT: Well, no. I will allow a few more
questions.
Q: You presented a Visa card in someone else’s
name to a bank in Ohio; right?
A: Yes.
....
Q: In fact, you had taken over that person’s credit
card account by lying —
5372 UNITED STATES v. OSAZUWA
[DEFENSE COUNSEL]: Your Honor, again, I am
going to object to the particulars of the conviction.
THE COURT: Overruled.
Q: In fact, you had taken over that person’s credit
card account by lying to the credit card com-
pany that you were, in fact, that person; isn’t
that right?
A: Yes, sir.
Q: And that’s how you got the money; right?
A: Yes, sir.
Q: You had that person’s mail delivered to your
address, pretending that that was the other per-
son’s address. That’s a lie, too, isn’t it, sir?
A: Yes. We are talking about 1997; right?
Q: That’s correct.
....
Q: In fact, you even admitted to your probation
officer, didn’t you, that you had a fake identifi-
cation in another person’s name; right?
....
[DEFENSE COUNSEL]: Your Honor, again I am
going to object.
THE COURT: Sustained. Why don’t you move on,
[Prosecutor].
UNITED STATES v. OSAZUWA 5373
Q: In fact, you also, as part of your bank fraud —
you also lied to get office space in someone
else’s name; isn’t that correct?
[DEFENSE COUNSEL]: Again, I am going to
object to the prosecutor going into all the details of
the conviction. [Defendant] has admitted that he was
convicted, and I don’t think the prosecutor can
inquire further than what he has already. I don’t
believe that the purpose of cross is to go through
everything that happened in 1997.
At this point, the district court called for a sidebar confer-
ence and acknowledged that it did not know the full contours
of the law regarding whether the underlying facts of the con-
viction could properly be used for impeachment. The court
asked the parties to submit briefing on this point and dis-
missed the jury for the day. The next morning, before the jury
returned, the court decided that the government should be
allowed to use specific instances of untruthfulness as
impeachment because Defendant had “opened the door” to
this line of questioning by attempting to minimize the serious-
ness of his conduct. This minimization occurred, in the
court’s view, when Defendant (truthfully) stated that he had
served only one day in custody for the bank fraud conviction.
Therefore, the court held that Defendant had opened the door
to the evidence of prior acts that otherwise would have been
inadmissible as beyond the limits of Federal Rule of Evidence
609.
The court also ruled that the evidence was admissible under
Federal Rule of Evidence 608 as past specific instances pro-
bative of untruthfulness. The court stated that Rule 608
“clearly allows specific instances of untruthfulness to be
introduced but not to be proved by extrinsic evidence.” The
court further held that the extent of the questioning was not
improper because it had taken only a few minutes, but that the
issue whether Defendant had lied to his probation officer was
5374 UNITED STATES v. OSAZUWA
irrelevant and could not be mentioned again. After the jury
returned, the court gave a limiting instruction about the proper
use of the impeachment evidence. The prosecutor continued
cross-examination, asking Defendant whether he had given a
false name on two specific occasions, and then moved on to
another topic. The government did not mention bank fraud in
its closing argument.
The jury returned a guilty verdict. Defendant timely
appeals, arguing that the court impermissibly allowed the
government to elicit the facts underlying his bank fraud con-
viction.
STANDARD OF REVIEW
We review for abuse of discretion the district court’s
admission of specific acts as impeachment evidence. United
States v. Geston, 299 F.3d 1130, 1137 (9th Cir. 2002). We
also review for abuse of discretion the district court’s ruling
that the defense opened the door to the introduction of evi-
dence. United States v. Tory, 52 F.3d 207, 210 (9th Cir.
1995).
DISCUSSION
A. Rule 608
[1] Defendant first argues that the district court erred in
holding that the admission of the facts underlying his bank
fraud conviction was warranted under Rule 608. Rule 608
provides, in relevant part:
Specific instances of the conduct of a witness, for
the purpose of attacking or supporting the witness’
character for truthfulness, other than conviction of
crime as provided in rule 609, may not be proved by
extrinsic evidence. They may, however, in the dis-
cretion of the court, if probative of truthfulness or
UNITED STATES v. OSAZUWA 5375
untruthfulness, be inquired into on cross-
examination of the witness . . . .
Fed. R. Evid. 608(b) (emphasis added).
The crux of Defendant’s argument is that Rule 608 applies
only to specific instances of conduct that were not the basis
of a criminal conviction. Evidence relating to a conviction, he
argues, is treated solely under Rule 609. For the following
reasons, we agree.
We begin by noting, as one of our sister circuits has, that
the interplay between Rules 608 and 609 is complex. See
United States v. Cudlitz, 72 F.3d 992, 995 (1st Cir. 1996)
(“The rules governing this subject—cross-examining a crimi-
nal defendant about prior wrongs—are among the most com-
plex and confusing in the entire law of evidence.”). We
attempt here to clarify the relationship between these two
rules.
[2] “We interpret the legislatively enacted Federal Rules of
Evidence as we would any statute.” Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 587 (1993). We begin with the
text of Rule 608, which we recognize is ambiguous. Defen-
dant argues that Rule 608 exempts from its coverage a wit-
ness’ prior criminal convictions and instead delegates to Rule
609 any questions relating to such convictions. The govern-
ment advances a different construction of Rule 608, arguing
that the rule is concerned solely with the admissibility of
extrinsic evidence. In the government’s view, Rule 608 pro-
vides only that, while specific instances of the conduct of a
witness may not be proved by extrinsic evidence, extrinsic
evidence is admissible to prove criminal convictions. Both
Defendant’s and the government’s constructions are plausible.
See H. Richard Uviller, Credence, Character, and the Rules
of Evidence: Seeing Through the Liar’s Tale, 42 Duke L.J.
776, 804-05, 822 (1993) (advocating for the “extrinsic evi-
dence” reading of the rule but noting that, in a questionnaire
5376 UNITED STATES v. OSAZUWA
sent to 300 federal district judges, the responding group was
“almost evenly divided” between the two readings).
[3] Because the plain meaning of the rule is not apparent
from its text alone, we turn to legislative history. The 1972
advisory committee’s notes to Rule 608(b) support Defen-
dant’s “delegation” construction of the rule. The notes pro-
vide that “[p]articular instances of conduct, though not the
subject of criminal conviction, may be inquired into on cross-
examination” and “[c]onviction of crime as a technique of
impeachment is treated in detail in Rule 609, and here is
merely recognized as an exception to the general rule exclud-
ing evidence of specific incidents for impeachment purposes.”
Fed. R. Evid. 608 advisory committee’s notes (1972) (empha-
ses added). Those comments suggest that evidence relating to
convictions falls within the exclusive purview of Rule 609.
Several of our sister circuits have also adopted Defendant’s
proposed construction. See United States v. Lightfoot, 483
F.3d 876, 881 (8th Cir.) (“Rule 608(b) . . . confers upon dis-
trict courts discretion to permit witness-credibility questioning
on specific bad acts not resulting in a felony conviction.”
(emphasis added)), cert. denied, 128 S. Ct. 682 (2007); United
States v. Parker, 133 F.3d 322, 327 (5th Cir. 1998) (“Prior
bad acts that have not resulted in a conviction are admissible
under [Rule] 608(b) if relevant to the witness’s character for
truthfulness or untruthfulness.” (emphasis added)); Mason v.
Texaco, Inc., 948 F.2d 1546, 1556 (10th Cir. 1991) (“Under
[Rule] 608(b), a defendant may impeach a Government wit-
ness by cross-examining him about specific instances of con-
duct not resulting in conviction if such conduct is probative
of the witness’ character for truthfulness or untruthfulness.”
(emphasis added) (internal quotation marks omitted)).
We further recognize the unfairness that would result if evi-
dence relating to a conviction is prohibited by Rule 609 but
admitted through the “back door” of Rule 608. See Donald H.
Ziegler, Harmonizing Rules 609 and 608(b) of the Federal
UNITED STATES v. OSAZUWA 5377
Rules of Evidence,” 2003 Utah L. Rev. 635, 677 (2003) (“[I]t
plainly seems unfair to forbid impeachment under Rule
609[ ] but allow the defendant to be questioned about the
underlying acts under Rule 608(b).”).
The government’s citation to United States v. Hurst, 951
F.2d 1490, 1500-01 (6th Cir. 1991), is unavailing. In Hurst,
the court permitted brief questioning under Rule 608(b) about
the conduct leading to the conviction because the name of the
offense, subornation of perjury, did not convey enough infor-
mation to the jury to assess how the conviction related to the
witness’ credibility. Id. at 1501. Bank fraud, the name of the
offense at issue here, is more self-explanatory than suborna-
tion of perjury. Moreover, the dishonesty aspect of the crime
was covered adequately by the initial questioning, to which
Defendant did not object. Therefore, Hurst is not particularly
persuasive.
The government also argues on policy grounds that it does
not make sense to bar inquiry into dishonest acts just because
a witness was eventually convicted for them. But that argu-
ment ignores that evidence of a prior conviction for dishonest
acts can be far more prejudicial to a defendant than evidence
of dishonest acts that have not been held to violate the law.
Under the government’s interpretation, a bad act resulting in
a conviction would be, in a sense, counted twice—once by
presenting the bad act itself and once by presenting the con-
viction that flowed from it. The risk of unfair prejudice or
undue emphasis is the reason why Rule 609 and its related
case law carefully guide the admission of prior convictions
and their underlying facts.
[4] Echoing the observations of the Fifth, Eighth, and Tenth
Circuits, we hold that Rule 608(b) permits impeachment only
by specific acts that have not resulted in a criminal convic-
tion. Evidence relating to impeachment by way of criminal
conviction is treated exclusively under Rule 609, to which we
now turn.
5378 UNITED STATES v. OSAZUWA
B. Rule 609
[5] The next question is whether the impeachment evidence
was properly admitted under Rule 609, which provides in
part: “[E]vidence that any witness has been convicted of a
crime shall be admitted regardless of the punishment, if 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.” Fed. R. Evid. 609(a)(2).
[6] It is undisputed that bank fraud is an act of dishonesty,
so the offense falls under Rule 609(a)(2). But the scope of
inquiry into prior convictions is limited. “ ‘[A]bsent excep-
tional circumstances, evidence of a prior conviction admitted
for impeachment purposes may not include collateral details
and circumstances attendant upon the conviction.’ ” United
States v. Sine, 493 F.3d 1021, 1036 n.14 (9th Cir. 2007)
(quoting United States v. Rubio, 727 F.2d 786, 797 n.5 (9th
Cir. 1983)). Generally, “only the prior conviction, its general
nature, and punishment of felony range [are] fair game for
testing the defendant’s credibility.” United States v. Albers,
93 F.3d 1469, 1480 (10th Cir. 1996); see also United States
v. Gordon, 780 F.2d 1165, 1176 (5th Cir. 1986) (limiting
cross-examination to “the number of convictions, the nature
of the crimes and the dates and times of the convictions” and
excluding “the particular facts of [the defendant’s] previous
offenses”).
[7] The scope of the inquiry is limited because of the unfair
prejudice and confusion that could result from eliciting details
of the prior crime. See United States v. Robinson, 8 F.3d 398,
410 (7th Cir. 1993) (holding that the impeaching party is not
“entitled to harp on the witness’s crime, parade it lovingly
before the jury in all its gruesome details, and thereby shift
the focus of attention from the events at issue in the present
case to the witness’s conviction in a previous case”) (internal
quotations marks omitted)); United States v. Roenigk, 810
F.2d 809, 815 (8th Cir. 1987) (“The problem with excessive
UNITED STATES v. OSAZUWA 5379
references to the details of prior criminal conduct is that the
jury is likely to infer that the defendant is more likely to have
committed the offense for which he is being tried than if he
had previously led a blameless life.”).
The government does not argue in this case that its cross-
examination of Defendant stayed within the established
bounds of inquiry under Rule 609. It instead asserts that
Defendant “opened the door” to questions about his specific
dishonest acts because his testimony about serving only one
day in prison minimized the seriousness of his bank fraud
offense. We disagree.
[8] In a criminal prosecution, the government may intro-
duce otherwise inadmissible evidence when the defendant
“opens the door” by introducing potentially misleading testi-
mony. United States v. Beltran-Rios, 878 F.2d 1208, 1212
(9th Cir. 1989). A defendant may open the door by minimiz-
ing, or attempting to explain away, a prior conviction. See,
e.g., United States v. Baylor, 97 F.3d 542, 545 (D.C. Cir.
1996) (noting that “a witness may ‘open the door’ to more
extensive cross-examination by attempting to minimize the
conduct for which he was convicted”). If a defendant opens
the door, the prosecution may “introduce evidence on the
same issue to rebut any false impression that might have
resulted from the earlier admission.” Sine, 493 F.3d at 1037(internal quotation marks omitted).
In Sine, we held that a defendant’s accurate testimony did
not open the door to the introduction of otherwise inadmissi-
ble evidence by the government. Id. The defendant had stated
in his direct testimony that a judge “ ‘wrote up some bad
things about [him]’ ” in an order from a prior criminal con-
tempt proceeding that was inadmissible in his criminal fraud
trial. Id. On cross-examination, the government questioned
the defendant using specific phrases that appeared in the
judge’s order, such as “chicanery,” “mendacity,” and “rife
with deceit.” Id. at 1029. We held that the defendant’s “limit-
5380 UNITED STATES v. OSAZUWA
ed” accurate testimony about the judge’s order “was insuffi-
cient to open the door to the government’s otherwise
impermissible references to the order, as [the defendant] did
not introduce an inaccurate portrait of the order itself.” Id. at
1037. We rejected the government’s argument that the defen-
dant’s testimony had painted a picture of “ ‘selflessness and
hope,’ ” thereby opening the door to use of the inadmissible
order. Id. “Presenting a theory of the case that can be effec-
tively rebutted by otherwise-inadmissible evidence,” we held,
“does not by itself open the door to using such evidence; only
partial, misleading use of the evidence can do so.” Id. at 1038.
[9] Sine controls here. Defendant was asked how much
time he had spent in prison for bank fraud, and he accurately
answered “one day.” Defendant did not attempt to explain
away or otherwise minimize his conviction, as did the defen-
dants in the cases cited by the government. See, e.g., United
States v. Jackson, 310 F.3d 1053, 1053-54 (8th Cir. 2002)
(per curiam) (holding that where a defendant testified that he
was previously convicted for attempted capital murder
because “ ‘[t]here’s no self-defense law in Arkansas,’ ” the
prosecution could elicit, on cross-examination, several details
of the crime that were inconsistent with the implication that
the defendant had acted in self-defense (alteration in origi-
nal)); United States v. Perry, 857 F.2d 1346, 1352 (9th Cir.
1988) (holding that the defendant opened the door when he
attempted to “explain away” his prior convictions “by offer-
ing his own version of the underlying facts” (internal quota-
tion marks omitted)). Defendant did not testify about the
underlying facts of, or create a false impression about, his
conviction; he truthfully answered the question asked. Under
Sine, that answer was insufficient to open the door to ques-
tions about the details of his offense. If the government
believed that Defendant’s answer about incarceration risked
minimizing his crime in the eyes of the jury, it could have
questioned Defendant further about the sentence, such as by
inquiring how much restitution he had to pay, rather than ask-
UNITED STATES v. OSAZUWA 5381
ing several collateral and prejudicial questions about the
underlying dishonest acts.
[10] The government also argues that, even if it was error
to admit the evidence, any error was harmless for three rea-
sons: (1) the cross-examination consisted of only 9 of 68
pages of Defendant’s trial testimony; (2) the judge gave a lim-
iting instruction; and (3) the prosecutor did not mention the
prior bad acts in closing argument. We are not persuaded. The
prosecutor hammered Defendant about several specific
instances in which he lied to perpetrate bank fraud. The limit-
ing instruction was not given when the government first
began its inquiry into the bank fraud acts; rather, it was given
the next morning, after Defendant had already been asked
about most of the dishonest acts and the jurors had had an
evening to assimilate the damaging information. Even though
the prosecutor did not mention these acts in its closing argu-
ment, the repeated questions about the lies Defendant told in
the course of the bank fraud were likely to have influenced
the jury’s view of Defendant’s credibility. Credibility was
critical in this case because Defendant’s account of the events
was pitted against that of the only other eyewitness, Medina.
Allowing the prosecution to repeatedly question Osazuwa
about his lack of truthfulness in the course of the bank fraud
prejudicially tipped the scales against Osazuwa’s defense.
CONCLUSION
In short, evidence relating to a prior conviction is not
admissible under Rule 608. Evidence of a prior conviction of
a crime that involves dishonesty may be admissible under
Rule 609. But evidence admissible under Rule 609 for
impeachment purposes may not include collateral details of
the crime of conviction. A defendant does not “open the door”
to otherwise inadmissible evidence by doing no more than
providing a truthful answer to a direct question. Here, the
improperly admitted testimony prejudiced his case.
5382 UNITED STATES v. OSAZUWA
[11] For these reasons, we hold that the district court
abused its discretion in admitting evidence of the acts under-
lying Defendant’s conviction for bank fraud and that the error
was not harmless.1
REVERSED and REMANDED.
1
We need not and do not reach Defendant’s other arguments on appeal.