USA v. Craig German

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11811
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRAIG GERMAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 4:20-cr-00042-RSB-CLR-1
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2 Opinion of the Court 22-11811
____________________
Before WILSON, LUCK and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Craig German appeals his convictions for perjury
and false statements to a government agency. On appeal, he argues
that the district court abused its discretion in admitting evidence of
his prior conviction and the facts underlying it pursuant to Federal
Rules of Evidence 608 and 609. Having read the parties’ briefs and
reviewed the record, we affirm German’s convictions.
I.
We review for abuse of discretion a district court’s decision
to admit evidence of a defendant’s prior convictions.
United States
v. Pritchard, 973 F.2d 905, 908 (11th Cir. 1992). However, even if
the district court abused its discretion by admitting this evidence,
we will not reverse an erroneous evidentiary ruling unless the error
was not harmless.
United States v. Augustin, 661 F.3d 1105, 1123
(11th Cir. 2011). An error is harmless unless, based on the entire
record, there is a reasonable likelihood that the error had a substan-
tial influence on the outcome of the proceeding.
Id.;
see Fed. R.
Crim. P. 52(a) (an error that “does not affect substantial rights” is
harmless and “must be disregarded”).
A party abandons an issue on appeal by failing to raise it ad-
equately in his brief.
United States v. Campbell, 26 F.4th 860, 873
(11th Cir. 2022) (
en banc) (holding that issues not properly
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22-11811 Opinion of the Court 3
presented on appeal are deemed forfeited and will not be addressed
absent extraordinary circumstances),
cert. denied, 143 S. Ct. 95
(2022). Notably, “[w]e have long held that an appellant abandons
a claim when he either makes only passing references to it or raises
it in a perfunctory manner without supporting arguments and au-
thority.”
United States v. Mosquera, 886 F.3d 1032, 1053 (11th Cir.
2018) (quotation marks omitted).
II.
Extrinsic evidence of specific instances of conduct, except for
a criminal conviction under Rule 609, is not admissible to attack or
support a witness’s character for truthfulness; however, specific in-
stances of conduct may be asked about on cross-examination if
they are probative of the witness’s truthfulness. Fed. R. Evid
.
608(b). Federal Rule of Evidence 609 permits a party to attack a
witness’s character for truthfulness by introducing evidence of the
witness’s prior conviction, subject to limitations. Fed. R. Evid.
609(a). A criminal defendant who chooses to testify places his cred-
ibility in issue as does any witness; therefore, he is subject to im-
peachment through evidence of prior convictions.
United States v.
Vigliatura, 878 F.2d 1346, 1350-51 (11th Cir. 1989). Rule 609(b) pro-
hibits the admission of evidence of past convictions for impeach-
ment purposes if more than ten years have passed since the convic-
tion or release from confinement, whichever is later, unless: (1) the
conviction’s “probative value, supported by specific facts and cir-
cumstances, substantially outweighs its prejudicial effect; and (2)
the proponent gives an adverse party reasonable written notice of
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4 Opinion of the Court 22-11811
the intent to use it so that the party has a fair opportunity to contest
its use.” Fed. R. Civ. P. 609(b).
We apply a presumption against the use of prior conviction
impeachment evidence that is over ten years old, and “such con-
victions will be admitted very rarely and only in exceptional cir-
cumstances.”
Pritchard, 973 F.2d at 908 (quotation marks omit-
ted). We have explained that “[t]he danger in admitting stale con-
victions is that while their remoteness limits their probative value,
their prejudicial effect remains,” because “[t]he jury, despite limit-
ing instructions, can hardly avoid drawing the inference that the
past conviction suggests some probability that defendant commit-
ted the similar offense for which he is currently charged.”
Id. (quo-
tation marks omitted).
Likewise, the probative value of past conviction evidence
can outweigh its prejudicial effect, even when a conviction is over
ten years old.
See Pritchard, 973 F.2d at 909. In
Pritchard, we af-
firmed the district court’s admission of a 13-year-old prior convic-
tion for impeachment purposes, because the credibility of the wit-
ness was “[t]he crux of th[e] case.”
Id. We noted that the district
court had considered: “(1) The impeachment value of the prior
crime; (2) The point in time of the conviction and the witness’[s]
subsequent history; (3) The similarity between the past crime and
the charged crime; (4) The importance of the defendant’s testi-
mony; and (5) The centrality of the credibility issue.”
Id.
Furthermore, we stated that the government’s need for the
impeaching evidence was also an important factor to consider,
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22-11811 Opinion of the Court 5
noting that the defendant did not have any convictions in the ten
years before trial, the prior conviction was not cumulative of other
impeachment evidence, and the defendant had not been a juvenile
at the time of the conviction.
Id. We noted that the conviction
“was only thirteen years old” and that other circuits had also al-
lowed for the admittance of convictions over ten years old in cases
where the previous crime was not “of a heinous nature, or of ex-
treme age, or lack[ing] any special circumstances justifying the ad-
mission of the conviction.”
Id. at 909 n.7.
III.
The record here demonstrates that German has abandoned
any argument as to the admissibility of the facts underlying his con-
viction under Federal Rule of Evidence 608 by failing to promi-
nently raise the issue in his brief. Furthermore, German has failed
to show that the district court abused its discretion in allowing the
government to question him about his prior conviction. Because
his credibility was a key issue at his trial, the conviction’s probative
value outweighed any prejudicial effect despite it being over ten
years old.
See Pritchard, 973 F.2d at 909. Additionally, German in-
itially opened the door to testimony about the conviction, thereby
minimizing any prejudice resulting from the use of the conviction
to impeach German’s testimony.
See United States v. Cooper, 926
F.3d 718, 730 (11th Cir. 2019) (“[O]therwise inadmissible extrinsic
evidence is admissible on redirect as rebuttal evidence, when de-
fense counsel has opened the door to such evidence during cross-
examination.”) (quotation marks omitted).
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6 Opinion of the Court 22-11811
Accordingly, based on the aforementioned reasons, we af-
firm German’s convictions.
AFFIRMED.
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