* The Honorable Arthur L. Alarcon, Circuit Judge, U.S . Court of Appeals,

Ninth Circuit, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 5 2002 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 01-2147 DARREN HOWELL,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D.C. NO. CR-99-904-LH)

Michael A. Keefe, Assistant Federal Public Defender , Albuquerque, New Mexico, for Defendant-Appellant. Clay G. Guthridge, Attorney, United States Departme nt of Justice, Washington, D.C. (Ralph F. Boyd, Jr., Assistant Attorney Genera l, United States Department of Justice, Washington, D.C.; Jessica Dunsay Silver , Attorney, United States Department of Justice, Washington D.C.; David Igles ias, United States Attorney, Albuquerque, New Mexico; Tara C. Neda, Assistant Un ited States Attorney, Albuquerque, New Mexico; with him on the brief) forPlaintiff-Appellee.

Before BRISCOE , ALARCON , * and ANDERSON , Circuit Judges.

ANDERSON , Circuit Judge.-2-

Darren Howell was convicted by a jury of two counts of deprivation of rights under color of law in violation of 18 U.S.C. § 242, committed during the course of his employment as a correctional officer at the San Juan County Detention Center in Aztec, New Mexico. He was sent enced to 87 months imprisonment, followed by three years of supervisedrelease. Because we conclude that the district court violated Fed. R. E vid. 609(a)(1) in refusing to admit evidence for impeachment purposes of the natu re of the prior felony convictions of numerous witnesses without first con ducting the required balancing test under Rule 403, we reverse Howell’s conviction and sentence and remand for further proceedings consistent herewith.

BACKGROUND The incidents of which Howell was convicted occurre d in late 1997 at the Detention Center. Elizabeth Stallings was booked i nto the Center on October 27, 1997. The guards had difficulty managing her becau se she was apparently under the influence of drugs or alcohol. Inmate Sandra L ucero testified that Howell asked her to start a fight with Stallings, but Luce ro refused. Inmate Belinda Serrano testified that Howell asked her do the same thing, and she then hit Stallings twice in the jaw. Serrano testified thatHowell asked her to beat-3-

Stallings because Stallings was “giving the guards a hard time.” R. Vol. IV, Tr. of Proceedings 8/15/00 at 136. Inmate Levester Steen testified that he and Howell had a relationship involving drugs. Steen testified that Howell told him that inmate Randy Gilmore was a “snitch” and that he (Howell) and Gilmore hada prior problem concerning a drug deal. Steen testified that Howell indicated to him that he wanted Steen to beat up Gilmore. When Steen asked for proof that G ilmore was a “snitch,” Steen testified that Howell gave Steen a copy of a probab le cause statement showing Gilmore was a “snitch.” Steen stated he held the s tatement up against the window of the adjoining cell block in which Gilmore reside d, and the inmates in Gilmore’s cell block proceeded to beat him up until Steen directed them to stop. Steen further testified that Howell rewarded him wi th cigarettes and marijuana. Steen also testified that Howell asked him to beat up inmate Paul Collette because Collette owed Howell money for drugs and ci garettes. Steen stated he declined and another inmate beat up Collette. Inmate Mitch Westbrook testified to the same basic facts involving Howell, Steen andGilmore. Westbrook also testified that Howell took him to visit with some p olice detectives to whom he was giving information and, after Westbrook returne d to his cell, Westbrook’s cellmate told him that Howell had told inmates thathe (Westbrook) was talking with detectives, and soon thereafter several inmate s beat up Westbrook.-4-

Howell was indicted for the beatings of Stallings and Gilmore. In all, twelve inmates testified in support of the governme nt’s case against Howell. The defense presented testimony from five inmates. At a pretrial hearing to resolve contested issues concerning the admission of eviden ce at trial, there was a discussion about the admissibility under Fed. R. Ev id. 609(a) of evidence of various witnesses’ prior felony convictions, for impeachment purposes. Rule 609 provides as follows: (a) General rule . For the purpose of attacking the credibility of a witness, (1) evidence that a witness other than an accused h as been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in ex cess of one year under the law under which the witness was convicted , and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the ac cused; and (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or fals e statement, regardless of the punishment. Fed. R. Evid. 609(a). Rule 403, in turn, provides:

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, orby considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Fed. R. Evid. 403.-5-

During the course of the discussion, the prosecutoropined that the fact that a witness has a prior felony conviction is admissib le under Rule 609, but not the nature of the conviction. Defense counsel disagree d, responding affirmatively when the court asked him if “what you want to do is to prove the nature of every conviction [and] the date of every conviction.” R. Vol. III, Tr. of Proceedings 8/14/2000 at 10. Defense counsel also asked the co urt to determine the extent of the information admissible about a witness’ felony conviction on a witness-bywitness basis. Id. at 9. The court ruled on this issue as follows: “[A]fter having thought back to other cases in whic h this issue came up, I have limited the testimony about convictions to the fact of conviction, unless there was no objection to it by the other side. And I think that that is the basis given in the federal rules of evidence for even permitting the evidence, that is, the fact of conviction, not what the conviction was for, with the exception of those convictions that are based upon fraud or dishonesty, failure to tell the truth, those kinds of convictions. . . . So I’m going to limit the testimony with resp ect to impeachment based upon convictions to the fact of conviction, a nd if you want the date of conviction, number of convictions. Id. at 50. Howell argues on appeal that the district court’s b lanket exclusion of evidence of the “nature of [the] government witness es’ felony convictions without any reference to Rule 403, any discussion or findin gs concerning the pertinent factors, or any apparent awareness of the need to b alance the probative value of-6-

the evidence against the risk of prejudice” was an error which was not harmless and requires a reversal of his conviction. Br. of Appellant at 17. Because we agree with Howell on this point, we need not addres s the other issues he raises on appeal.

DISCUSSION We review the district court’s decision to admit orexclude evidence for an abuse of discretion. United States v. Lugo , 170 F.3d 996, 1005 (10th Cir. 1999). A court abuses its discretion when its decision is based on an error of law. United States v. Tan , 254 F.3d 1204, 1207 (10th Cir. 2001). In interpreting the scope of Rule 609, we begin with the Rule’s relevant language. Rule 609 states “ evidence that a witness . . . has been convicted of a crime shall be admitted, subject to Rule 403 .” Fed. R. Evid. 609(a)(1) (emphasis added). The questions this case presents are (1) w hether the “evidence” of the prior conviction necessarily includes information about the nature of the conviction, or whether the mere fact of conviction is sufficient; (2) whether, before admitting such “evidence,” the court must al ways conduct a Rule 403 balancing and whether it did so in this case; and ( 3) if we conclude that the court erred in excluding evidence about the nature of the government witnesses’ felony convictions, whether that error necessitates revers al of Howell’s conviction.1 The Rule provides that evidence of a prior convicti on of a witness shall be

admitted unless, pursuant to Rule 403, its probativ e value is substantially outweighed by its prejudicial effect. In contrast, evidence of a prior conviction of the accused shall be admitted unless its probative value is merely outweighed by its prejudicial effect. See 28 Charles Alan Wright & Victor James Gold, Federa l Practice & Procedure § 6134 at 230 (1993) (“Rule 609(a)(1) is intended to make it harder to admit conviction evidence when offered against an accused than it is when offered against another witness.”). -7- I. Whether evidence of prior conviction includes the nature of the conviction We have held in several cases involving the admissi bility of prior convictions of the accused , that “[o]rdinarily, it is improper for the prosec ution to examine into the details of the crime for which the accused was convicted. The cross-examination should be confined to a showing o f the essential facts of convictions, the nature of the crimes , and the punishment.” United States v. Albers , 93 F.3d 1469, 1479-80 (10th Cir. 1996) (quoting United States v. Wolf , 561 F.2d 1376, 1381 (10th Cir. 1977) (emphasis adde d)). While those statements in Albers and Wolfinvolved introduction of evidence of the accused ’s former felony conviction, not that of a simple witness, th e Rule in fact demonstrates a greater concern about admitting potentially prejudi cial information about the accused than about a mere witness. 1 Thus, we see no reason why we should interpret Rule 609(a)(1) to permit introduction of evidence of the nature of an accused’s prior felony conviction, but not evidence of the nature of a witness’s prior felony conviction. Accordingly, our relative ly sparse case law supports-8-

Howell’s argument that the “evidence” of a felony c onviction for impeachment purposes under Rule 609(a)(1) ordinarily should inc lude the nature of that felony conviction. Furthermore, other circuits, as well as commentator s, considering this issue have also held that “Rule 609(a)(1) requires a district court to admit evidence of the nature and number of a non-defendant witness’ prior felony convictions.” United States v. Burston , 159 F.3d 1328, 1336 (11th Cir. 1998) (emphasis ad ded); see also United States v. Fawley , 137 F.3d 458, 473 (7th Cir. 1998) (noting that the court “has previously held that a prosecutor’s questions on cross-examination must be limited to only whether the witness ‘had pr eviously been convicted of a felony, to what the felony was and to when the conviction was obtained’”) (quoting United States v. Dow , 457 F.2d 246, 250 (7th Cir. 1972)) (emphasis added); Doe v. Sullivan County , 956 F.2d 545, 551 (6th Cir. 1992) (noting that, i n a section 1983 action, evidence surrounding a witne ss’s prior felony conviction should include “the nature of the crime , the number of counts, and the date of the disposition.”) (emphasis added); United States v. Guerue , 875 F.2d 189, 190 (8th Cir. 1989) (holding that, with respect to a prior f elony conviction of the defendant, “the district court should have admitted evidence of both the earlier conviction and its nature”). See also generally , 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 609.20[2] at 609-57 to -60 (“When a-9-

prior conviction is admissible for impeachment, the impeaching party is generally limited to establishing the bare facts of the convi ction: usually the name of the offense, the date of the conviction, and the senten ce. . . . It may also be improper for the trial court to limit impeachment to the mer e fact of a prior conviction, without allowing the impeaching party to specify th e nature and number of offenses involved. Circuits that have considered the impeachment of a nondefendant witness have concluded that Rule 609(a)(1 ) requires the trial court to admit evidence of the nature and date of each convi ction, subject to Rule 403 balancing.”); Wright & Gold, supra n.1, § 6134 at 221-27 (examining the various approaches and concluding that the best one, and th e one most favored by courts and commentators, limits admissibility to the “esse ntial facts” of the conviction, which include the number of convictions, the nature of each underlying crime, the time and place of each conviction, and the punishme nt). Furthermore, we agree with the Eleventh Circuit’s e xplanation of why information about the nature of a witness’s felony conviction is relevant:

The implicit assumption of Rule 609 is that prior f elony convictions have probative value. Their probative value, however, necessarily varies with their nature and number. E vidence of a murder conviction says something far different about a witness’ credibility than evidence of a conviction for a min or drug offense, although both may constitute a prior felony convict ion. Furthermore, evidence of fifteen murder convictions says somethi ng different about a witness’ credibility than evidence of only one such conviction. We are not certain what evidence of tw o convictions for theft by taking, one conviction for armed robbery, and one conviction-10-

for aggravated assault says about [the witness’] cr edibility, but we are certain that the jury should have been given th e opportunity to make that decision. Burston , 159 F.3d at 1335 (footnote and citation omitted). We therefore conclude that the district court erred in adopting a blanketrule that the nature of the government witnesses’ felony convictions was catego rically inadmissible. We hold that, ordinarily, evidence of a witness’s felo ny conviction shall include information about the nature of that conviction unl ess, after Rule 403 balancing, the probative value of such evidence is outweighed by its prejudicial effect.

II. Rule 403 balancing Rule 609 expressly states that the evidence of a fe lony conviction “shall be admitted, subject to Rule 403.” Fed. R. Evid. 609( a)(1). Our cases have emphasized the mandatory nature of that Rule 403 balancing. See , e.g. , Gust v. Jones , 162 F.3d 587, 596 (10th Cir. 1998) (“Rule 609(a)(1) requires , in addition to a threshold length and severity of punishment, an application of the balancing test of Federal Rule of Evidence 403.”) (emphasis added); United States v. Begay , 144 F.3d 1336, 1338 (10th Cir. 1998) (“Rule 403 balancing applies unless the prior crime involves dishonesty or false statements.”) (emphasis added); cf. United States v. Mejia-Alarcon , 995 F.2d 982, 987 n.2 (10th Cir. 1993) (“[A]ny final determination as to admissibility under Rule 609(a)(1) rests on a balancing2 While Mejia-Alarconinvolved the attempted use of a prior felony

conviction for impeachment of the accused, not a wi tness, Begayand Gust involved, respectively, the attempted use of a conv iction to impeach a government witness and the attempted use of a conviction to impeach the plaintiff in a civil case. Thus, we have interpreted the Rule’s stateme nt that evidence of a witness’s felony conviction shall be admitted “subject to Rul e 403” to require 403 balancing. Likewise, the Advisory Committee Note to the 1990 A mendments to Rule 609, in which the Rule 403 language was added, expl ains that “[t]he amendment reflects the view that it is desirable to protect a ll litigants from the unfair use of prior convictions, and that the ordinary balancing test of Rule 403, which provides that evidence shall not be excluded unless its prejudicial effect substantially outweighs its probative value, is app ropriate for assessing the admissibility of prior convictions for impeachment of any witness other than a criminal defendant.” Fed. R. Evid. 609, Advisory C ommittee Note. -11- of the probative value and prejudicial effect of th e conviction.”) (emphasis added); United States v. Linn , 31 F.3d 987, 992 (10th Cir. 1994) (noting in dict a that “[i]n 609(a)(1), the rule requires the judge to weigh prejudice.”); United States v. Owens , 723 F.2d 64, 65 (10th Cir. 1983) (“[A]n automatic decision by a trial court to permit the Government to cross-exami ne an inmate-witness concerning any or all prior criminal convictions, w ithout carefully applying the balancing test we set forth in [ United States v.] Rosales [,680 F.2d 1304, 1306 (10th Cir. 1981)], would in and of itself be a clear abuse of discretion.”). 2 Moreover, we have indicated that we are more defere ntial to the district court’s decision concerning the admissibility of ev idence of a felony conviction where the court has conducted such balancing. See Begay , 144 F.3d at 1338 (“We-12-

. . . afford substantial deference when the distric t court has engaged in the balancing required by Federal Rule of Evidence 609.”); United States v. Smith , 10 F.3d 724, 727 (10th Cir. 1993) (“[W]e give consider able deference to the district court where the court has engaged in the weighing p rocess prescribed by” Rule 609.). We therefore conclude that the district cou rt in this case should have conducted a Rule 403 balancing before determining t o exclude all evidence of the witnesses’s prior convictions other than the fact and date of such convictions. We now consider whether we are satisfied that it did i n fact engage in such weighing. In addressing situations involving the balancing of probative value against prejudicial effect of felony convictions used to impeach an accused, we have held that “this circuit has not adopted a requirement th at trial courts make explicit findings in determining the admissibility of prior convictions. While explicit findings enable the appellate court to ensure the p roper application of Rule 609, explicit findings are not ‘an absolute requirement the nonperformance of which mandates reversal.’” United States v. Sides , 944 F.2d 1554, 1561 (10th Cir. 1991) (quoting United States v. Jackson , 627 F.2d 1198, 1208-09 (D.C. Cir. 1980) (further citations omitted)). This is not a case, however, where we are confidentthe district court conducted the required balancing but simply failed to make explicit findings in the record. Rather, it appears the judge made a bl anket ruling that the fact and3 The government suggests that the district court mus t have agreed with the

prosecutor’s argument that the nature of the felonyconvictions of all the witnesses should be excluded to avoid “tit for tat” arguments, “battling out who’s got the worst witness.” R. Vol. III, Tr. of Procee dings 8/14/2000 at 15, 17. That, however, is a potential problem whenever there are witnesses testifying for different parties, each of whom has a prior felony conviction. That cannot, by itself, justify a blanket exclusion of evidence of the nature of all witnesses’ felony convictions. Moreover, while the district court co uld, in conducting the Rule 403 balancing, determine that the admission of such evi dence would, in the particular circumstances of the case before it, confuse, misle ad or distract the jury, we simply cannot conclude that the court in this case conducted the required analysis to reach that conclusion. -13- date of the witnesses’ felony convictions could be admitted but nothing else and implicitly determined that no Rule 403 balancing wa s required. We hold that such a ruling was an abuse of discretion. In determining which essential facts, such as the nature of the conviction and their numb er, are admissible to impeach a witness, the court must conduct a Rule 403 balancin g to weigh the probative value of such evidence against its prejudicial effect, it s potential to confuse or mislead the jury, and any other pertinent Rule 403 consider ations. While we do not require explicit findings in the record, we must be able to satisfy ourselves that the court engaged in such balancing before ruling o n the admissibility of the evidence of a prior felony conviction. We can obta in no such satisfaction in this

case. 3 Finally, we do not suggest that courts must always admit evidence of the nature of a prior felony conviction. After conduct ing the Rule 403 balancing, the-14-

court may determine that evidence of the conviction , or certain aspects of evidence of the conviction, are properly excluded. See United States v. Ford , 17 F.3d 1100, 1103 (8th Cir. 1994) (“It is within the district court’s discretion to conclude that the nature of [the witness’s prior fe lony conviction] might inflame the jury.”). We simply hold that the court must co nduct a Rule 403 balancing before determining what information about a witness ’s prior felony conviction, including its nature, should be admitted or exclude d.

III. Harmless error Ordinarily, once we have determined that the court erred in its decision concerning the admission or exclusion of evidence c oncerning prior felony convictions of witnesses, we would “consider whethe r the error was harmless. Because defendant alleges no constitutional error, we [would] apply the harmlesserror analysis of Kotteakos v. United States , 328 U.S. 750 (1946).” MejiaAlarcon , 995 F.2d 982, 990 (10th Cir. 1993). Kotteakos provides that a nonconstitutional error is harmless unless “the error . . . had substantial influence” on the outcome of the trial “or if one is left in grav e doubt” as to its influence. Kotteakos , 328 U.S. at 765. “In the context of Rule 609, er ror is harmless if the witness’ credibility was sufficiently impeached by other evidence, or if the-15-

Government’s case was strong enough to support a co nviction even apart from the witness’ testimony.” Burston , 159 F.3d at 1336. However, this is not the typical case where we simp ly evaluate the entire record to determine whether the exclusion of the pa rticular pieces of evidence had a substantial influence on the jury. Rather, this is a case where the court categorically excluded all reference to the nature of the witnesses’ prior fe lony convictions. It therefore did no 403 balancing at all, and, as a result, we cannot tell from the record the exact nature of those felo ny convictions, nor can we assess their potential influence on the jury’s eval uation of the witnesses’ credibility. Lacking any basis in this record for determining what would have been admissible, in whole or in part, had the courtconducted the Rule 403 balancing, we are obliged to proceed on the assumpt ion that all of the evidence of the nature of the witnesses’ felony convictions wou ld have been admissible. Assuming that all such evidence should have been ad mitted, we have little trouble concluding that its exclusion had a substantial influence on the outcome of this case. The evidence against Howell was not overwhelming, and the jury encountered considerable difficulty reaching its ve rdict. As Howell argues, there was little evidence of motive for Howell to order t he beating of Stallings, and there was evidence that many inmates had their own motive for beating Gilmore because several witnesses testified that there was a general awareness of the fact4 As indicated above, because of the court’s ruling, we do not know the

exact nature of all the witnesses’ prior felony con victions.

5 A guard testifying for the government said that witnesses Serrano and Lucero were probably not honest people. Two guards testifying for the defense stated that Steen was probably not truthful. The j ury also learned that several inmate witnesses had received immunity in exchange for their testimony against (continued...) -16- that Gilmore was a “snitch” and that “snitches” wer e routinely beaten. Moreover, the jury deliberated for some seventeen to eighteen hours, and then informed the court that it was unable to reach a verdict. Aftergoing home for the evening, the jury was given an Allen instruction the following morning and deliberated for approximately an hour and one-half more before retu rning a guilty verdict on both

counts. Additionally, the vast majority of the evidence in support of the government’s case was the testimony of the inmates with prior felony convictions. Twelve of the government’s total of seventeen witne sses were those inmates. Their testimony was obviously crucial to the govern ment’s case against Howell. These inmate witnesses had prior convictions for, among other things, intimidation of a witness, aggravated battery, burg lary, drug offenses and firearms offenses. R. Vol. III, Tr. of Proceedings 8/14/00 at 8-9. The prosecutor indicated that one or two of them had homicide convictions. Id. at 18. 4 Although we note that there was some impeaching evidence presented w ith respect to some of these witnesses, 5 given the fact that the government’s entire case r ested primarily on the5 (...continued)

Howell and that several had used aliases in the pas t. -17- testimony of inmates with multiple prior felony con victions, and that the jury obviously found the case to be extremely close, we cannot say it was harmless error to categorically exclude all evidence, for impeachment purposes, of the nature of those inmates’ prior felony convictions w ithout conducting the required Rule 403 balancing. Cf. United States v. Cavender , 228 F.3d 792, 799-800 (7th Cir. 2000) (holding that exclusion of evidence of p rior felony conviction of key government witness was not harmless with respect to defendant against whom the government had little other evidence).

CONCLUSION For the foregoing reasons we REVERSE Howell’s convi ction and sentence and REMAND this case.