D.D.C. Finds that Defendant’s 10+ Year Old Conviction Will be Admissible Impeach Him Under Rule 609(b)

Federal Rule of Evidence 609(b) provides as follows:

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

The Advisory Committee’s Note to Rule 609(b) states that “[i]t is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances.” This makes the recent opinion of the United States District Court for the District of Columbia in United States v. Okafor, 2024 WL 4263928 (D.D.C. 2024), the exception rather than the rule.

In Okafor, the defendant was charged with conspiracy to unlawfully distribute controlled substances, maintaining drug-involved premises and aiding and abetting in the same, and twenty-seven counts of unlawful distribution of controlled substances and aiding and abetting in the same. Previously, the defendant pleaded guilty in July 2008 to tax evasion, filing false income tax returns, and health care fraud He was sentenced to 65 months’ imprisonment, released from incarceration on March 15, 2013, and placed on 36 months of supervised release.

In finding that this conviction will be admissible to impeach him at his current trial, the court concluded as follows:

First, consider the nature of the crimes. Were they more recent, these crimes would skip the balancing test altogether, as they each involved a dishonest act or false statement. To be convicted of tax evasion, Okafor had to admit to “willfully attempt[ing]…to evade or defeat” a tax…; of filing false income tax returns, to “[w]illfully” submitting a tax return “which he [did] not believe to be true and correct”…; and of health care fraud, to “knowingly and willingly…defraud[ing] [a] health care benefit program.”…And the factual statement appended to Okafor’s plea agreement more than satisfies these elements, with Okafor admitting to, for instance, “reporting false information to the Internal Revenue Service,” “providing his tax return preparers with false information,” “establishing sham corporations to create false expenses,” and making a “false statement…in furtherance of[ ] a scheme in which he knowingly, or with deliberate disregard of whether the statements were true or false, or with a conscious purpose to avoid learning the truth, obtained monies from health care benefit programs for hospital services he did not perform.”… We are now outside the window where this conviction would be automatically admissible, but it is nonetheless notable that the counts are precisely the sort of crimes that the Federal Rules of Evidence consider most reflective of a witness’s trustworthiness—and therefore most appropriate for impeachment.

Next, the time of the conviction. We are outside the ten-year window—but barely, as Okafor was released in 2013. So while these convictions are somewhat stale, they are about as fresh as any dishonesty-related conviction subject to this balancing test will be. This factor therefore weighs against admission, but weakly.

Third, the crimes with which Okafor is now charged are quite different than those of which he was convicted in 2008: those were financial crimes while these are drug crimes. There is a greater fear of prejudice resulting from admitting prior convictions “similar to the instant charge,”…on the theory that the evidence might be taken more for propensity than for untruthfulness. No such fear exists here, so the divergence points towards admission.

Finally, should he choose to testify, Okafor’s credibility will likely be “central to the trial,”…which also means his testimony is “particularly important.”…In light of Ruan, the government will have to prove that Okafor “knowingly or intentionally acted in an unauthorized manner.”…And Okafor’s papers thus far have consistently maintained that his alleged co-conspirators duped him, which suggests that the case may come down to whether he can persuade the jury that he meant well….This factor, too, therefore weighs in favor of admission….

The Court acknowledges that Rule 609 prescribes a “stringent” test before a conviction more than ten years old may be admitted….But it is hard-pressed to imagine a better candidate than the conviction here. Accordingly, the Court finds that the probative value of Okafor’s 2008 conviction “substantially outweighs its prejudicial effect,” Fed. R. Evid. 609(b)(1), and that the government may therefore impeach Okafor with it should he testify.

-CM