Western District of New York Finds Drug Court Felony Conviction Reduced to a Misdemeanor Doesn’t Qualify for Admission Under Felony Impeachment Rule
Drug courts are an interesting component of the criminal justice system. Typically, drug court allow a defendant charged with a drug offense who completes a treatment program to have (1) his conviction thrown out; or (2) his felony conviction reduced to a misdemeanor conviction. Meanwhile, Federal Rule of Evidence 609(a)(1) provides that
(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant
In other words, Rule 609(a)(1) allows a party to use prior felony convictions to impeach a witness. So, assume a witness goes to drug court, is convicted of a felony, and later has his conviction reduced to a misdemeanor after completing his treatment program. Can that witness be impeached with his prior conviction? That was the question addressed by the United States District Court for the Western District of New York in United States v. Krug, 2019 WL 416946 (W.D.N.Y 2019)
In Krug, the alleged victim, Devin Ford,
pled guilty, in a designated Drug Court part of New York State Supreme Court, County of Erie, to Criminal Possession of a Controlled Substance in the Third Degree, a Class B felony…During the plea colloquy, the prosecutor explained that Ford had been admitted to the Judicial Diversion Program and had signed a contract to enter the program. A Diversion Program Contract provided that if Ford successfully completed drug, alcohol and mental-health treatment, among other requirements, “his conviction for criminal possession of a controlled substance in the third degree would be replaced with a conviction for criminal possession of a controlled substance in the seventh degree, a class A misdemeanor.” Likewise, the Diversion Program Contract states that, in the event Ford completes all program requirements, including drug treatment, abstaining from drugs and alcohol, and regular meetings with his case manager, “the Court promises to allow [him] to withdraw [his] plea of guilty and plead guilty to…an “A” misdemeanor.” Ford’s conviction was ultimately converted or reduced to Criminal Possession of a Controlled Substance in the Seventh Degree, a misdemeanor.
According to the court, this meant that Ford couldn’t be impeached under Rule 609(a)(1):
When Ford testifies in this case, he will not have a felony conviction for Criminal Possession of a Controlled Substance in the Third Degree…His guilty plea to that felony was withdrawn and replaced with a misdemeanor that does not involve dishonesty or a false statement….The Court therefore finds that the felony is inadmissible for impeachment under Rule 609(a)(1)(A).
The court then found that there was also another way to approach the issue:
Federal Rule of Evidence 609(c)(1) specifically provides that evidence of a conviction is not admissible if “the conviction has been the subject of a pardon, annulment, certification of rehabilitation, or other equivalent procedure based upon a finding that the person has been rehabilitated.” Id.Here, Diversion Program Contract indicates that Ford was required accomplish several goals prior to a replacement of his felony with the misdemeanor. These goals include consistently attending drug and alcohol treatment, not using or possessing drugs or alcohol, attending regular meetings with his case manager, attending all scheduled court appearances, completing an approved education requirement, and obtaining either full-time employment or enrolling in a full-time course of study. The subsequent reduction of Ford’s conviction to the misdemeanor confirms that he satisfied the Drug Court that he accomplished these goals, all of which were aimed at his rehabilitation.
-CM