FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 08-50244 Plaintiff-Appellee,

D.C. No.

v.  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
COUNSEL

Elizabeth A. Newman, Deputy Federal Public Defender, Los

Angeles, California, for the defendant-appellant. 

UNITED STATES v. OSAZUWA 5367
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 eyewitnesses, unsurprisingly offered different accounts of the

events. The government cross-examined Defendant concerning 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 supervised 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 His supervised release was revoked in 2007 for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 Center (“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

5368 UNITED STATES v. OSAZUWA
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

UNITED STATES v. OSAZUWA 5369
him to relax. Medina responded to the patting by hitting

Defendant’s hand back. In Defendant’s version, Medina wobbled while pushing Defendant’s hands away and grabbed

Defendant’s shirt for balance, causing both men to fall.

Defendant denied ever punching Medina, “launching” forward 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 conviction. Defendant truthfully answered that he was sentenced

to, and served, one day in jail. On cross-examination, the government 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? 

5370 UNITED STATES v. OSAZUWA
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 — 

UNITED STATES v. OSAZUWA 5371
[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 company 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 person’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 identification 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]. 

5372 UNITED STATES v. OSAZUWA
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 conference and acknowledged that it did not know the full contours

of the law regarding whether the underlying facts of the conviction could properly be used for impeachment. The court

asked the parties to submit briefing on this point and dismissed 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 seriousness 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 probative 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

UNITED STATES v. OSAZUWA 5373
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 conviction. 

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 evidence. 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 discretion of the court, if probative of truthfulness or

5374 UNITED STATES v. OSAZUWA
untruthfulness, be inquired into on crossexamination 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 criminal defendant about prior wrongs—are among the most complex 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. Defendant argues that Rule 608 exempts from its coverage a witness’ prior criminal convictions and instead delegates to Rule

609 any questions relating to such convictions. The government 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 provides 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 evidence” reading of the rule but noting that, in a questionnaire

UNITED STATES v. OSAZUWA 5375
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 Defendant’s “delegation” construction of the rule. The notes provide that “[p]articular instances of conduct, though not the

subject of criminal conviction, may be inquired into on crossexamination” 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 excluding evidence of specific incidents for impeachment purposes.”

Fed. R. Evid. 608 advisory committee’s notes (1972) (emphases 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 district 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 witness by cross-examining him about specific instances of conduct 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 evidence 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

5376 UNITED STATES v. OSAZUWA
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 information 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 subornation 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 argument 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 conviction 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 conviction. Evidence relating to impeachment by way of criminal

conviction is treated exclusively under Rule 609, to which we

now turn. 

UNITED STATES v. OSAZUWA 5377
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 exceptional 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

5378 UNITED STATES v. OSAZUWA
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 crossexamination 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 introduce otherwise inadmissible evidence when the defendant

“opens the door” by introducing potentially misleading testimony. United States v. Beltran-Rios, 878 F.2d 1208, 1212

(9th Cir. 1989). A defendant may open the door by minimizing, 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 inadmissible 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 contempt 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 “limitUNITED STATES v. OSAZUWA 5379
ed” accurate testimony about the judge’s order “was insufficient 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 defendant’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 effectively 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 defendants 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 original)); 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 offering his own version of the underlying facts” (internal quotation 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 questions 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 ask5380 UNITED STATES v. OSAZUWA
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 reasons: (1) the cross-examination consisted of only 9 of 68

pages of Defendant’s trial testimony; (2) the judge gave a limiting 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 limiting 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 argument, 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. 

UNITED STATES v. OSAZUWA 5381
[11] For these reasons, we hold that the district court

abused its discretion in admitting evidence of the acts underlying Defendant’s conviction for bank fraud and that the error

was not harmless.1

REVERSED and REMANDED. 

1We need not and do not reach Defendant’s other arguments on appeal.

5382 UNITED STATES v. OSAZUWA