In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-3730

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANTHONY L. ROGERS,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Indiana, Fort Wayne Division.

No. 03 CR 78—Theresa L. Springmann, Judge.

____________

ARGUED NOVEMBER 1, 2007—DECIDED SEPTEMBER 4, 2008

____________

Before POSNER, WOOD, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Federal Rule of Evidence 609(b)

severely limits the use of a prior conviction to impeach

a witness if a period of more than ten years has elapsed

since the conviction or the witness’s release from any

confinement imposed for that conviction. This appeal

presents the question of whether probation following a

prison term constitutes “confinement” for purposes of the

ten-year time limit under Rule 609(b)—in other words,
2 No. 06-3730

whether the ten-year clock begins to run upon the witness’s release from prison or the expiration of his

ensuing probation or parole. We conclude that probation

does not constitute “confinement” within the meaning of

Rule 609(b).

Anthony Rogers was tried in 2005 on charges of making

a false statement on a firearm-purchase form and being a

felon in possession of a firearm. He testified in his own

defense and was impeached with his 1993 conviction for

distribution of cocaine. Rogers was released from prison

on that conviction in 1994 after his sentence was modified

to probation; he then remained on probation supervision

until 1999. Because probation does not constitute confinement, however, Rogers’s conviction fell outside the tenyear time limit of Rule 609(b), and its admission for

impeachment purposes was therefore error. But given

the overwhelming evidence of his guilt, we conclude

the error was harmless and affirm his convictions.

I. Background

Anthony Rogers became the subject of a federal investigation when he made two separate purchases of the same

make and model handgun in a single month—a sign of

possible straw purchases. These purchases required

Rogers to lie on federal firearms paperwork—specifically,

forms requiring (among other things) that he attest truthfully that he was the firearm’s “actual buyer.” One of the

guns was linked to a crime scene in Chicago. In addition,

Rogers had a felony conviction for cocaine dealing in Texas
No. 06-3730 3

Rogers had a firearm permit issued by the State of Indiana, 1

and the law at that time allowed a same-day firearm purchase

upon presentation of a valid carry permit. The government

advised us in its brief that at the time, Indiana apparently was

not regularly checking for out-of-state convictions when

issuing such permits, a procedure that has since been changed.

in 1993, making it illegal for him to possess a firearm. See 1

18 U.S.C. § 922(g).

In the course of the investigation, ATF agents met

with Rogers at the apartment he shared with his girlfriend.

He admitted purchasing a firearm for a friend. He said he

was initially reluctant to do so because he thought it

might be illegal, but his friend ultimately persuaded him

to make the purchase. Two handguns were eventually

recovered from the apartment—one purchased in one

of the suspected straw purchases and another that Rogers

had purchased in 1992 or 1993 when he was in the military.

Rogers was indicted for making a false statement to

a federally licensed firearms dealer, see 18 U.S.C.

§ 924(a)(1)(A), and being a felon in possession of a firearm,

see 18 U.S.C. § 922(g)(1). The case proceeded to a one-day

jury trial on April 12, 2005. Rogers took the stand in

his own defense, admitting the straw purchase but claiming he thought his answer to the “actual buyer” question

on the federal form was truthful. He also testified that the

two guns found in the apartment had once been his but

that he gave them to his girlfriend and never “messed”

with them. The government impeached him with his 1993

conviction for cocaine dealing. Rogers’s girlfriend also
4 No. 06-3730

testified; she said Rogers gave her the guns for her protection. Rogers was convicted on both counts.

The district court made two posttrial rulings on the

admission of Rogers’s prior conviction. In the first ruling,

the court erroneously believed that the conviction was

less than ten years old and therefore admissible under

Federal Rule of Evidence 609(a) on a showing that the

probative value of this evidence outweighed its prejudicial effect. This ruling was based on the court’s initial view

that although Rogers had been released from prison on

the 1993 conviction a year later, in 1994—outside the rule’s

ten-year window—he had remained on probation until

1999, and therefore the conviction fell within the ten-year

time limit. On Rogers’s motion for a new trial, however,

the court corrected itself, holding that the time Rogers

spent on probation did not bring the conviction within

the time limit. Rule 609(b) requires that convictions outside the ten-year time limit satisfy a more strenuous

standard: the conviction’s probative value must substantially outweigh its prejudicial effect. The district court

concluded that the 1993 cocaine-dealing conviction did not

meet this more demanding standard. But the court found

the error harmless and denied the motion for a new trial.

II. Discussion

The sole issue in this appeal is whether Rogers’s 1993

conviction was properly admitted to impeach him as a

witness. Rule 609 of the Federal Rules of Evidence governs

the admissibility of a witness’s prior convictions for
No. 06-3730 5

impeachment purposes and permits impeachment of an

accused as a witness if the probative value of his prior

conviction outweighs its prejudicial effect. The rule

generally excludes convictions more than ten years old,

however:

Evidence of a conviction under this rule is not

admissible if a period of more than ten years has

elapsed since the date of the conviction or of the

release of the witness from the confinement imposed

for that conviction, whichever is the later date, unless

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.

FED.R. EVID. 609(b). The ten-year time limit thus runs from

the date of conviction or “the release of the witness from

the confinement imposed for that conviction,” whichever

is later. There is no question here that the date of Rogers’s

conviction, 1993, falls outside the ten-year time limit, as

does the date of his release from prison, 1994. We must

decide whether the probation that followed his release

from prison for that conviction (essentially, his parole) may

be said to constitute “confinement imposed for that

conviction.”

We conclude that it may not. This is a question of first

impression in this circuit, although the government notes

that our decision in United States v. Gant, 396 F.3d 906 (7th

Cir. 2005), refers to the date of the defendant’s discharge

from parole as the apparent starting point for the calculation of the ten-year time period. But Gant made no
6 No. 06-3730

more than a passing reference to the defendant’s discharge from parole; the parties there did not dispute the

age of the prior conviction, and the decision therefore did

not affirmatively address whether parole equalled “confinement” for purposes of Rule 609(b). Id. at 909. Indeed, a

close reading of Gant reveals that it would have been

unnecessary for the court to address this issue because

the defendant’s release from prison and his discharge

from parole were within Rule 609(b)’s ten-year time

limit. See id. (noting that Gant was released from prison

in the same year as his discharge from parole).

In United States v. Daniel, 957 F.2d 162, 167-68 (5th Cir.

1992), the Fifth Circuit concluded that “confinement” for

purposes of calculating the ten-year time limit in Rule

609(b) does not include parole supervision. Daniel relied

in part on the historical notes to Rule 609, which noted

that the time limit would begin to run from “the date of

the release of the witness from confinement imposed for

his most recent conviction, or the expiration of the period

of his parole, probation, or sentence granted or imposed.” But in 1971 the revised draft of the rule contained

the present language, which runs the ten-year time

period from “the date of the conviction or of the release

of the witness from the confinement imposed for that

conviction.” The Fifth Circuit concluded that the text of

the rule as adopted would not support an interpretation

that measured the ten-year time span from the end of

parole. Id. at 168. We agree. Rule 609(b) unambiguously

starts the clock at the date of conviction or release from

“confinement,” without any mention of periods of probation or parole.
No. 06-3730 7

The government views “the defendant’s discharge

from parole [ ]as the appropriate date of his ‘release from

confinement’ ” but does not explain why the term “confinement” as used in Rule 609(b) should be read to include

periods of community supervision. Nothing in the rule

itself suggests such an interpretation. Accordingly, we

hold that “confinement” for purposes of the ten-year

time limit in Rule 609(b) does not include periods of

probation or parole.

In this circuit we have now defined both the starting

and ending points for the calculation of Rule 609(b)’s tenyear time limit. The clock starts at the witness’s release

from any physical confinement, or in the absence of

confinement, the date of the conviction. See United States v.

Rein, 848 F.2d 777, 782 (7th Cir. 1988) (start date is not the

date of the criminal act but the date of conviction). In

United States v. Thompson, 806 F.2d 1332, 1339 (7th Cir.

1986), we held that the end date of the time limit for

impeaching convictions is the start of the trial at which

the witness is testifying. Other circuits have confronted

the additional question of whether a revocation of parole

stops the running of the ten-year clock. See, e.g., United

States v. Gray, 852 F.2d 136, 139 (4th Cir. 1988) (stopping the

time where the defendant had been reincarcerated after a

parole violation); United States v. McClintock, 748 F.2d 1278,

1288-89 (9th Cir. 1984) (same for probation violations

that implicate the original offense conduct). But that is a

matter for another case. Here, we agree with the second of

the district court’s posttrial rulings that it was error to

admit Rogers’s prior conviction under the more lenient

standard of Rule 609(a). More than ten years elapsed since
8 No. 06-3730

his release from prison in 1994, triggering the more stringent admissibility standard of subsection (b).

As we have noted, Rule 609(b) is not an absolute bar to

the admission of a prior conviction that is more than ten

years old; it is, instead, an asymmetrical balancing test, one

that requires the probative value of a prior conviction to

substantially outweigh the prejudice caused by its admission into evidence. The district court concluded that

Rogers’s cocaine conviction did not meet this more rigorous test, and indeed, we have said that impeachment by

a conviction falling outside the rule’s ten-year time

limit should be permitted only in rare and exceptional

circumstances. See United States v. Fallon, 348 F.3d 248, 254

(7th Cir. 2003) (citing United States v. Shapiro, 565 F.2d 479,

481 (7th Cir. 1977)). Here, the government does not

even attempt to argue that Rogers’s cocaine conviction

qualifies, and we are hard-pressed to disagree with this

implicit concession. Accordingly, we agree with the

district court’s conclusion that it was error to admit the

prior conviction for impeachment purposes.

We also agree, however, with the district court’s assessment that in this case the error was harmless in light of

the evidence presented at trial. An evidentiary error

warrants reversal only when the error had “ ‘a substantial

and injurious effect or influence on the jury’s verdict.’ ”

United States v. Redditt, 381 F.3d 597, 601 (7th Cir. 2004)

(quoting other source). Under this standard, where a

limiting instruction is given or if the evidence is very

strong, the error usually will be harmless. Id. Here, the

evidence offered against Rogers was so overwhelming
No. 06-3730 9

Rogers suggests that the admission of his prior conviction for 2

impeachment purposes violated the rule of Old Chief v. United

(continued...)

that the erroneous admission of his prior conviction for

impeachment purposes could not have had a serious

effect on the verdict.

First, the jury heard evidence that Rogers had admitted

knowingly making a false statement on ATF Form 4473

when he purchased the handgun for a friend while claiming to be the actual buyer. See United States v. Howell, 37

F.3d 1197, 1202 (7th Cir. 1994); see also United States v.

Obiechie, 38 F.3d 309, 315 (7th Cir. 1994) (explaining that

§ 924(a)(1)(A) does not require knowledge of the law, only

knowledge that the statement is in fact a false one). While

Rogers claimed at trial that he believed his answer was

truthful, the jury knew that Rogers had previously acknowledged that he suspected the purchase was illegal all

along. Moreover, the government introduced evidence

suggesting that Rogers had a penchant for making

false statements on official forms, having lied on an

application for military reenlistment and an application

for an Indiana handgun permit.

Second, the government presented ample evidence to

prove that Rogers possessed both of the firearms found

in the apartment, in violation of § 922(g)(1). On this count,

the government was required to prove that (1) Rogers

had a prior felony conviction (a fact to which Rogers

stipulated pursuant to Old Chief v. United States, 519 U.S.

172 (1997));

2

 (2) he possessed a firearm; and (3) the firearm
10 No. 06-3730

(...continued) 2

States, 519 U.S. 172, which permits a defendant to stipulate to

his prior felony conviction and thereby preclude the government from introducing evidence of the conviction to prove the

prior-felony element of the offense. Nothing in Old Chief,

however, precludes impeachment by prior conviction under

Rule 609 when the defendant in a felon-in-possession prosecution testifies as a witness in his own defense. See United States

v. Montgomery, 390 F.3d 1013 (7th Cir. 2004) (defendant’s

prior felony admissible for impeachment in § 922(g)(1) prosecution); United States v. Smith, 131 F.3d 685, 687-88 (7th Cir. 1997).

traveled in or affected interstate commerce. 18 U.S.C.

§ 922(g)(1). Constructive possession is sufficient, and

under that theory our case law requires only that a defendant knowingly have “the power and the intention at a

given time to exercise dominion and control over an

object, either directly or through others.” United States v.

Alanis, 265 F.3d 576, 592 (7th Cir. 2001) (internal quotation

marks omitted). Also, constructive possession may be

joint, see id., and here, the evidence of joint constructive

possession of the firearms was substantial. Rogers

claimed that the firearms belonged to his girlfriend, but

they shared the apartment where the firearms were kept

(he spent more than 80 percent of his time living with her

at that residence); he gave them to her and knew precisely

where they were usually stored; and he worked and

lived in close proximity to them.
No. 06-3730 11

In short, the evidence on both counts was plentiful and

strong. Accordingly, the admission of Rogers’s 1993 drug

conviction, though error, was harmless.

AFFIRMED.

9-4-08