IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA )

)

v. ) CR. NO. 2:06cr202-WKW

)

EUGENE CLECKLER and )

KIM CLECKLER )

UNITED STATES’ MOTION IN LIMINE (CRIMINAL CONVICTIONS)

Comes now the United States of America, by and through Leura G. Canary, United States

Attorney for the Middle District of Alabama, and hereby moves in limine as follows.

I. STATEMENT OF FACTS

In pretrial interviews over the last two days, two of the Government’s witness–both former

employees of the defendants’ business–have disclosed certain criminal history, as follows:

A. Rhonda Howard

On January 5, 2007, Ms. Howard advised that in September 1996, she pled guilty in South

Carolina to passing bad checks and was sentenced to time served, 13 days. She was not sure whether

this constituted a felony or a misdemeanor. However, based on the offense conduct–Ms. Howard

advised that it involved about $600 worth of checks–the Government believes the offense would be

a misdemeanor. See S.C. St. § 34-11-60 (bad check statute); § 16-1-100 (classifying violation

involving checks over $200 as Class A misdemeanor); § 16-1-90 (classifying violation involving

checks over $1000 as Class E felony).

B. Terry Mezzell

On January 3, 2007, Mr. Mezzell disclosed that he had an arrest record. Based on his

statement and additional documents obtained by the Government, the Government believes that his

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criminal history consists of the following:

1. A conviction in Chilton County related to possession of a firearm without a

serial number. Mr. Mezzell remembered this as being a felony conviction. However, neither of the

record checks that the Government ran had a record of this.

2. On January 29, 2001, in Jefferson County:

a. a felony conviction for possession/receipt of a controlled substance

(offense date 4/14/1999), and

b. a misdemeanor conviction for possession of marijuana, second degree

(offense date 4/12/1999).

3. On October 4, 2004, in Bibb County, a misdemeanor conviction for

possession of marijuana, second degree (offense date 7/23/2003).

II. ARGUMENT

With respect to Ms. Howard, assuming the Government’s recitation of the facts is correct,

the conviction would not be admissible. Because the South Carolina statute requires proof of intent

to defraud, the Government agrees that the conviction is not excludable solely on the basis that it is

a misdemeanor. See Fed. R. Evid. 609(a)(2). However, the conviction is inadmissible because Ms.

Howard was convicted (and released from jail) more than ten years ago. See Fed. R. Evid. 609(b)

(conviction more than 10 years old admissible only if “the court determines, in the interests of

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

substantially outweighs its prejudicial effect”). Rule 609(b) creates a “strong presumption” against

the use of old convictions, and such convictions will be admitted “only very rarely.” United States

v. Pope, 132 F.3d 684, 687 (11 Cir. 1998). Defendants cannot make the required showing for th

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admission under Rule 609(b), and therefore defendants should not be allowed to use the conviction

to impeach Ms. Howard.

With respect to Mezzell, the Government does not dispute the admissibility for impeachment

purposes of his January 29, 2001 felony conviction for possession/receipt of a controlled substance.

However, his misdemeanor marijuana possession convictions are inadmissible, since they do not

involve dishonesty or false statement under Rule 609(a)(2). See United States v. Galati, 230 F.3d

254, 262 n.5 (7 Cir. 2000) (drug possession was not crime of dishonesty); United States v. Sellers,

th

906 F.2d 597, 603 (11 Cir. 1990) (“[C]rimes such as theft, robbery, or shoplifting do not involve th

“dishonesty or false statement” within the meaning of Rule 609(a)(2).”). Moreover, the firearm

conviction Mezzell described is more than ten years old and cannot satisfy the test for admissibility

under Rule 609(b).

CONCLUSION

For the reasons set forth above, the United States requests that the Court grant its Motion in

Limine and restrict the use of prior convictions for impeachment to Mezzell’s felony conviction for

receipt of a controlled substance.

Respectfully submitted this the 5 day of January, 2007. th

LEURA G. CANARY

UNITED STATES ATTORNEY

s/Andrew O. Schiff

ANDREW O. SCHIFF

Assistant United States Attorney

One Court Square, Suite 201

Montgomery, AL 36104

Phone: (334) 223-7280

Fax: (334) 223-7135

E-mail: andrew.schiff@usdoj.gov

Bar ID 43641

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IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA )

)

v. ) CR. NO. 2:06cr202-WKW

)

EUGENE CLECKLER and )

KIM CLECKLER )

CERTIFICATE OF SERVICE

I hereby certify that on January 5, 2007, I electronically filed the foregoing with the Clerk of

the Court using the CM/ECF system which will send notification of such filing to the following:

George Beck, Esq., and Ronald Brunson, Esq.

Respectfully submitted,

s/Andrew O. Schiff

ANDREW O. SCHIFF

Assistant United States Attorney

One Court Square, Suite 201

Montgomery, AL 36104

Phone: (334) 223-7280

Fax: (334) 223-7135

E-mail: andrew.schiff@usdoj.gov

Bar ID 43641

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