United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-2639

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the Eastern

v. * District of Missouri.

*

Rico Hayes, * [UNPUBLISHED]

*

Appellant. *

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Submitted: January 13, 2004

Filed: January 21, 2004

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Before LOKEN, Chief Judge, FAGG and BOWMAN, Circuit Judges.

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PER CURIAM.

The Government charged Rico Hayes with being a felon in possession of a

firearm. At his trial, Hayes’s wife waived her marital privilege and testified she had

seen Hayes possess one of the guns in question and had seen him possess the other

gun’s bag. She also testified that while Hayes was out of town, she found the gun

bag in a sack containing Hayes’s clothing, found a gun inside the bag, then called the

police, who confiscated the gun. Police officers also testified that when they

responded to a domestic disturbance call at the Hayes’s residence later, Hayes told

them his wife had his gun and he wanted it back. When they arrested Hayes the next
*

The Honorable Donald J. Stohr, United States District Judge for the Eastern

District of Missouri.

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day, he told them they already had all his guns and should leave him alone. A jury

convicted Hayes. 

On appeal, Hayes asserts the district court*

 abused its discretion in ruling Hayes

could not impeach his wife with her seventeen-year-old convictions for making false

statements to receive food stamps and for obtaining food stamps by fraud. See United

States v. Payton, 159 F.3d 49, 56-58 (2d Cir. 1998). Although generally “evidence

that any witness has been convicted of a crime shall be admitted if it involved

dishonesty or false statement, regardless of the punishment,” Fed. R. Evid. 609(a)(2),

“[e]vidence of a conviction . . . is not admissible if a period of more than ten years has

elapsed since the date of the conviction . . . unless the court determines, in the

interests of justice, that the probative value of the conviction . . . substantially

outweighs its prejudicial effect,” Fed. R. Evid. 609(b). The legislative history of

Rule 609(b) indicates that convictions more than ten years old will be admitted very

rarely and only in exceptional circumstances. United States v. Fallon, 348 F.3d 248,

254 (7th Cir. 2003). Rule 609(b) thus establishes a rebuttable presumption against

admissibility. United States v. Johnson, 720 F.2d 519, 522 (8th Cir. 1983). 

The district court did not abuse its discretion in excluding the convictions.

After a hearing, the district court ruled Hayes’s wife’s convictions should not be

admitted because they were more than ten years old and their probative value was

outweighed by their prejudicial effect. The prior convictions had little impeachment

value, Hayes’s wife engaged in no criminal wrongdoing afterwards, her testimony

was not critical to the Government’s case, and her trial testimony was consistent with

the other testimony at trial. 
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Hayes also asserts the evidence was insufficient to support his convictions.

According to Hayes, the Government did not prove beyond a reasonable doubt that

he possessed the guns. We disagree. Viewing the evidence in the light most

favorable to the verdict, a reasonable jury could find beyond a reasonable doubt that

Hayes knowingly possessed both guns, either actually or constructively. See United

States v. Abfalter, 340 F.3d 646, 654 (8th Cir. 2003). The testimony at trial

established Hayes made six statements to various law enforcement officers showing

his knowing possession of the guns.

We thus affirm the district court. See 8th Cir. R. 47B. 

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