Of the Northern District of California, sitting by *

designation.

United States Court of Appeals

For the First Circuit

No. 07-1217

UNITED STATES OF AMERICA,

Appellee,

v.

QUOC NGUYEN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

 Lynch, Chief Judge,

Selya, Circuit Judge,

and Schwarzer, District Judge. *

Christie M. Charles, with whom George F. Gormley, P.C. was on

brief, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with

whom Robert Clark Corrente, United States Attorney, and Sandra R.

Beckner, Assistant United States Attorney, were on brief, for

appellee.

September 19, 2008
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SELYA, Circuit Judge. This appeal hinges on a disputed

evidentiary ruling. The tale is tawdry, but quickly told.

On December 7, 2005, a federal grand jury in the District

of Rhode Island handed up a two-count indictment against four men,

including defendant-appellant Quoc Nguyen, charging violations of

18 U.S.C. § 894. Count 1 alleged that the foursome had conspired

to collect a gambling debt from one Tommy Nguyen (no relation to

the appellant) using extortionate means, while count 2 alleged that

each of the four men had committed the substantive offense: beating

Tommy Nguyen to facilitate the debt collection.

The appellant's case was severed. His three codefendants

were tried first; a jury convicted them on both counts in a joint

trial. We affirmed their convictions and sentences. See United

States v. Anh, 523 F.3d 43 (1st Cir. 2008).

The appellant was tried separately. The government's

evidence included testimony from Tommy Nguyen (whom we hereafter

shall call "Tommy" for ease in exposition) and two eye-witnesses,

a law enforcement officer's account of an alleged confession

attributed to the appellant, and corroborative exhibits (e.g.,

photographs, cancelled checks, and telephone records).

This evidence in cumulation showed that Tommy co-managed

a nail salon in West Warwick, Rhode Island. In or around April of

2005, he placed wagers totaling $12,000 on several basketball
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games. The bets were made with a Georgia bookmaker through a

middleman in Ohio.

There was evidence indicating that one of Tommy's friends

was responsible, as between them, for nearly one-half of the

aggregate amount wagered. But there was no evidence that the

bookmaker either had approved this arrangement or had dealt

directly with the friend. 

The total amount wagered was lost. Hot on the heels of

this debacle, Tommy received a telephone call from codefendant Van

Anh. The caller informed him that the time had come to pay the

piper. Minutes later, Anh appeared at the nail salon along with

two other men. They demanded the money. Tommy sparred for time,

and Anh agreed that he could pay the debt in installments.

About ten days later Anh, codefendant Khong Nguyen (the

appellant's brother), and a third man appeared at the nail salon

and received $2,000 from Tommy. A week or ten days after that, Anh

and Khong Nguyen collected another $2,000 on account. 

The same pair journeyed to the nail salon on June 12,

2005, bent on collecting a third installment. Tommy gave them a

check for $2,000 with the payee line left blank. Anh subsequently

cashed that check.

On June 20, Tommy met Anh and Khong Nguyen by

prearrangement at a Providence club. He gave Anh an $800 check
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with the payee line left blank. That check was later cashed at a

Georgia bank. 

Tommy seemingly believed that these payments satisfied

his share of the gambling debt. Others saw the matter differently;

Anh soon called Tommy and insisted upon payment of the $5,200

balance. When Tommy demurred, Anh stated that he knew where Tommy

worked and that Tommy could not "run." Anh then announced that he

would send someone to collect what was owed.

Around 8:00 p.m. on July 25, Tommy stepped out of the

nail salon to smoke a cigarette. Three men were lurking nearby:

the appellant, his brother, and codefendant Thinh Cao. The men

made it plain that they had come to collect the balance of the

indebtedness. Tommy replied that he already had paid what he owed

and retreated inside the nail salon.

Tommy left the shop about half an hour later. The three

collectors surrounded him and threatened that if he did not pay

they would "take care" of him. At this juncture, Tommy talked to

Anh on a cell phone, but Anh remained adamant; he warned that Tommy

had better square the account. Tommy again refused, and a beating

ensued.

The attack was quick but vicious. After knocking Tommy

to the ground, the men kicked and pummeled him. Witnesses attested

that the appellant participated in administering the beating.
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Tommy eventually broke free, but not before he had sustained severe

and painful injuries. 

Once Tommy had escaped, the assailants fled. They were

subsequently apprehended, identified by the victim and the other

eye-witnesses, and detained. 

A law enforcement officer testified that, later the same

night, the appellant waived his Miranda rights, see Miranda v.

Arizona, 384 U.S. 436, 444 (1966), and acknowledged his involvement

in the events of July 25. In his oral confession, the appellant

related that he had gone with the other two men to the nail salon

to collect a gambling debt. He admitted that he personally had

asked Tommy for the money; that when Tommy refused to pay, he and

his brother had pushed Tommy to the ground; and that they "may have

slapped [Tommy] around."

The appellant testified in his own defense. He

repudiated the alleged confession and, instead, told a somewhat

different story. He claimed that he did not know either Anh or the

victim prior to July 25; that he and his brother set out late that

afternoon for a Connecticut casino; that Khong Nguyen and Tommy

were acquaintances; that he and Khong stopped by the nail salon so

that Khong could pay Tommy a social visit; and that, after their

arrival, a fight broke out between the quondam friends.

The appellant denied any purposeful involvement in the

altercation (although he admitted that he had pushed Tommy in an
Rule 609 contains additional subsections dealing with the use 1

of misdemeanor convictions and other related subjects. Those

provisions are not relevant here, so we omit any further reference

to them.

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effort to keep his balance after fisticuffs had begun). He did not

learn until later, he said, that the point of the detour was to

collect a gambling debt.

The jurors largely credited the government's witnesses:

they convicted the appellant on the substantive extortion count

while acquitting him on the conspiracy count (there was no evidence

of any involvement on his part at any time other than on July 25).

The district court imposed a 46-month incarcerative sentence. This

timely appeal ensued.

This is a rifle-shot appeal. The appellant assigns error

to a single evidentiary ruling: the district court's decision to

exclude his proposed use on cross-examination of a prior felony

conviction attributable to the victim. That assignment of error

implicates Rule 609 of the Federal Rules of Evidence. Accordingly,

we start with the structure of that rule.

As an initial matter, Rule 609 provides that if certain

conditions are met a trial court may admit evidence that a witness

has been convicted of a felony — that is, a crime punishable by

more than one year in prison — "[f]or the purpose of attacking the

character for truthfulness" of that witness. Fed. R. Evid. 1
The statute of conviction provides: 2

If any person shall enter any automobile or other

motor vehicle with the intent to commit a theft or a

felony, he shall be guilty of a felony and, upon

conviction thereof, shall be punished by imprisonment for

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609(a)(1). Rule 609(b) supplies a key limitation on Rule 609(a).

That limitation reads in pertinent part:

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 . . . 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). In short, Rule 609(b) is a rule of exclusion

that bars the admission of a stale felony conviction for

impeachment purposes in the absence of a particularized showing

that its probative value substantially outweighs its potential for

unfair prejudice. See, e.g., United States v. Meserve, 271 F.3d

314, 322 (1st Cir. 2001); United States v. Orlando-Figueroa, 229

F.3d 33, 46 (1st Cir. 2000). Given the tenor of Rule 609(b),

common sense suggests that felony convictions more than ten years

old should be admitted only sparingly and in especially compelling

circumstances. See 4 Jack B. Weinstein & Margaret A. Berger,

Weinstein's Federal Evidence § 609.06[1] (2d ed. 2007). 

Against this backdrop, we turn to the application of Rule

609 in this instance. Tommy had a prior state-court conviction

dating back to May 23, 1996. He received a non-jail sentence. 2
not less than one year nor more than five years, or, in

the discretion of the trial judge, as for a misdemeanor.

Ga. Code Ann. § 16-8-18.

The appellant had two prior felony convictions: a February 3

24, 2004 state-court conviction for possession of burglary tools

and a July 1, 1996 federal conviction for conspiring to distribute

cocaine base and possession of cocaine base with intent to

distribute.

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The appellant's trial commenced on June 14, 2006. Pointing to the

lapse of more than ten years between the date of the conviction and

the commencement of the trial, the government moved in limine to

foreclose any reference to Tommy's prior conviction. Although the

government conceded that the prior conviction was for a felony, it

argued that the passage of time rendered the conviction subject to

the stringencies of Rule 609(b).

The appellant countered by moving in limine to bar the

government from using his own prior felony convictions in crossexamination. He simultaneously opposed the government's motion in 3

limine, arguing among other things that the court should treat the

various convictions as a "package" and allow either all or none to

be introduced.

The district court held a hearing to consider the crossmotions in limine. During that session, the appellant — apart from

his suggestion of a "package deal" anent all the prior convictions

— did not identify any specific facts or circumstances showing that

the probative value of Tommy's earlier conviction overbalanced its
The government contends that this claim of error was not 4

properly preserved below and, thus, has been either waived or

forfeited. Because we find the challenged ruling to be well within

the encincture of the trial court's discretion, see text infra, we

need not address this contention.

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unfairly prejudicial effect. At the end of the hearing, the court

noted the absence of any such showing and excluded evidence of

Tommy's conviction on that basis. The court simultaneously denied

the appellant's motion. In so doing, it observed that the

appellant's prior convictions both fell within the ten-year window

framed by Rule 609(b).

At trial, the appellant was not permitted to crossexamine Tommy about his earlier conviction. In the defense case,

the appellant's counsel attempted to blunt the shock value of the

appellant's prior convictions by eliciting their existence on

direct examination. Thereafter, the government briefly crossexamined the appellant about them.

In this venue, the appellant does not directly challenge

the denial of his motion in limine but, rather, restricts his claim

of error to the granting of the government's motion in limine. We 4

review rulings admitting or excluding evidence for abuse of

discretion. See, e.g., United States v. Gobbi, 471 F.3d 302, 311

(1st Cir. 2006); Orlando-Figueroa, 229 F.3d at 46. In a situation

such as this, that standard applies to rulings granting or denying

motions in limine. See, e.g., United States v. Lachman, 48 F.3d

586, 590 (1st Cir. 1995). We discern no such shortcoming here.
The presence or absence of a period of confinement is 5

important because Rule 609(b) explicitly provides that the ten-year

window opens either on "the date of the conviction or [the date] of

the release of the witness from the confinement imposed for that

conviction, whichever is the later date." Fed. R. Evid. 609(b). 

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At the risk of belaboring the obvious, we repeat that

Tommy's conviction took place on May 23, 1996. It did not entail

a period of confinement. The appellant's trial commenced on June 5

14, 2006. Thus, the conviction was stale (i.e., over ten years

old) and the generic proscriptions of Rule 609(b) were triggered.

This, in itself, is entitled to some weight.

Here, moreover, the criminal offense underlying the

conviction — auto entry — is a property crime. As such, it does

not generate much traction along the road toward probative value in

connection with the question of its perpetrator's veracity. See,

e.g., United States v. Field, 625 F.2d 862, 872 (9th Cir. 1980)

(explaining that property crimes suggest lack of veracity less

clearly than, say, those listed in Federal Rule of Evidence

609(a)(2)). Indeed, even when the underlying offense is one

directly relevant to credibility (say, a crime rooted in deceit or

fraud), appellate courts — including this court — have upheld

orders excluding stale convictions. See, e.g., United States v.

Gray, 410 F.3d 338, 346 (7th Cir. 2005); Orlando-Figueroa, 229 F.3d

at 46. 

And, finally, this is not a "he said, he said" case in

which the verdict depended upon the witness's unsupported
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testimony. While Tommy's version of the events of July 25 was

central to the prosecution's case, that version was substantiated

by the independent testimony of two eye-witnesses, the appellant's

confession, and photographs of the injuries that Tommy sustained.

This scenario distinguishes the case at hand from the cases relied

on by the appellant, which typically involve one-on-one credibility

contests. See, e.g., United States v. Montgomery, 390 F.3d 1013,

1014-15 (7th Cir. 2004) (involving a contention that a single

officer had falsified a charge and confession); United States v.

Spero, 625 F.2d 779, 780-81 (8th Cir. 1980) (involving a situation

in which the government's case hinged on cooperating witness's

veracity).

In an effort to deflect the force of this reasoning, the

appellant suggests that the district court should have allowed him

to use Tommy's prior conviction as part of a devil's bargain to

counterbalance the admission for impeachment purposes of the

appellant's own prior convictions. Treating the auto entry

conviction differently, the appellant says, let Tommy appear

"pristine" while he (the appellant) appeared to be a low-life.

This argument is flawed in several respects. 

First, the argument rests on a logical fallacy. The

appellant's prior convictions were recent and, as such, not within

the generic proscriptions of Rule 609(b). The fact that the

appellant was impeached by reference to those convictions did not
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make Tommy's auto entry conviction any more probative of Tommy's

character for truthfulness. 

Second — and more saliently — the Evidence Rules

deliberately treat recent felony convictions and stale felony

convictions differently. The former are presumed to be admissible

for impeachment purposes as long as "the court determines that the

probative value of admitting this evidence outweighs its

prejudicial effect to the accused." Fed. R. Evid. 609(a)(1); see

Fed. R. Evid. 403. The latter, however, must scale an appreciably

higher hurdle: a felony conviction more than ten years old is

generally excluded "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 qualitative

requirement for "specific facts and circumstances" and the

quantitative requirement that probative value be shown

"substantially" to outweigh prejudicial effect combine to make the

barrier to admissibility of stale convictions under Rule 609(b)

much higher than the barrier for the admissibility of recent

convictions under Rule 609(a). Consequently, attempting to

contrast the admission of stale felony convictions with the

admission of recent felony convictions is like comparing plums to

pomegranates.
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The appellant has one final arrow in his quiver.

Emphasizing the "interests of justice" language contained in Rule

609(b), he argues that the exclusion of Tommy's conviction is a

fluke. After all, the government was permitted to use his prior

drug-trafficking conviction, which occurred only six or seven weeks

later than Tommy's auto entry conviction. He adds, moreover, that

had his trial started a few months earlier — as did the trial of

his codefendants — the ten-year window would have remained open.

These arguments are unavailing. 

Insofar as the appellant's argument is based on the

closeness in dates of the drug-trafficking and auto entry

convictions, it is misleading. The appellant's drug-trafficking

conviction resulted in a four-year prison sentence and, thus, the

ten-year window for that conviction did not open until sometime in

the year 2000. See supra note 5. Consequently, that conviction

fell comfortably within the ten-year period. See Fed. R. Evid.

609(b). On the other hand, the appellant's auto entry conviction

resulted in a non-jail sentence. Thus, that conviction fell

outside the ten-year period. 

The appellant's plaint as to the timing of the trial is

no more convincing. There is no suggestion here that the

government manipulated either the calendar or the scheduling

process in order to postpone the trial and allow the clock to run

on the auto entry conviction. 
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At any rate, Rule 609(b) draws a bright line at ten years

— and whenever the law draws a line, some events will fall on the

"other" side. If the line were to be redrawn to account for the

vagaries of this case — say, by setting it at eleven years rather

than ten — we do not doubt that it would then chafe others. Short

of abandoning bright-line rules entirely and insisting upon

individualized consideration of the equities in each and every

case, unaided by rules, there is no satisfactory answer. In terms

of the efficient administration of justice and the encouragement of

predictability of results, that solution would create an arguably

greater problem.

In the last analysis, the standard of review caps our

discussion. We have described the test for abuse of discretion in

the following terms: "In making discretionary judgments, a district

court abuses its discretion when a relevant factor deserving of

significant weight is overlooked, or when an improper factor is

accorded significant weight, or when the court considers the

appropriate mix of factors, but commits a palpable error of

judgment in calibrating the decisional scales." United States v.

Roberts, 978 F.2d 17, 21 (1st Cir. 1992). Here, the district court

made a straightforward application of Rule 609. For aught that

appears, it considered all the pertinent factors, did not seize on

any improper factors, and reached a plausible conclusion as to the

balance of probative worth and unfairly prejudicial effect. That
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conclusion merits our approbation. See United States v. Brito, 427

F.3d 53, 64 (1st Cir. 2005) ("Where the circumstances can fairly

support a decision either to admit or to exclude particular

evidence, it is not the proper province of an appellate court to

second-guess the trial court's on-the-spot judgment."); OrlandoFigueroa, 229 F.3d at 46 (similar). This was a quintessential

judgment call, well within the trial court's discretion. 

We need go no further. For the reasons elucidated above,

we uphold the challenged ruling.

Affirmed.