USA v. Nace et al

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JIMMY NACE,
Defendant.
Case No. CR-21-198-RAW
ORDER
The Defendant, a non-Indian, is charged in this case with the murder of Bobby Joe
Dalpoas, an Indian, in Indian Country. Now before the court is the Government’s notice of other
crimes, wrongs, or bad acts [Docket No. 96] and the Defendant’s response thereto [Docket No.
109], which the court construes as a motion in limine.
The Government lists the following four convictions, stating that it will not offer
evidence of them on direct, but may offer them to rebut any character evidence offered by the
Defendant pursuant to Rules 404(a) and 405(a), to impeach the Defendant in the event he
testifies pursuant to Rule 609, or to otherwise rebut defensive theories advanced at trial:
1. 	The Defendant’s felony conviction for escape from the DOC or alternative incarceration
(Tulsa County case number CF-2018-02918);
2. 	The Defendant’s felony conviction for uttering a forged instrument (Tulsa County case
number CF-2017-00222);
3. 	The Defendant’s misdemeanor conviction for protective order violation (Tulsa County
case number CF-2015-03947); and
4. 	The Defendant’s felony conviction for burglary of a building in Galveston, Texas on or
about February 23, 2010.
At the outset, the Defendant informs the court that he does not anticipate introducing
evidence of his character pursuant to either Rule 404 or Rule 405. He informs the court,
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however, that his testimony is critical to his defense, and he requests that the court exclude the
prior convictions, arguing that if he testifies, Rule 609 prohibits the admission of his convictions.
Rule 609 provides in pertinent part:
(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:
* * *
(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;
and
(2) for any crime regardless of the punishment, the evidence must be admitted if the
court can readily determine that establishing the elements of the crime required
proving – or the witness’s admitting – a dishonest act or false statement.
Fed. R. Evid. 609(a)(1)(B) and (a)(2). Rule 609 also provides that if more than ten years have
passed since the conviction or release from confinement for it, whichever is later, it is admissible
only if:
(1) its probative value, supported by specific facts and circumstances, substantially
outweighs it 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.
Fed. R. Evid. 609(b).
As the Defendant argues, his misdemeanor conviction for protective order violation in
Tulsa County, case number CF-2015-03947 is not admissible under Rule 609(a)(1), as the
maximum potential penalty was “of not more than one (1) year.” 22 OKLA . S TAT . § 60.6. Rule
609(a)(1) provides for admission of prior convictions “punishable by death or by imprisonment
of more than one year.” As the court cannot readily determine that establishing the elements of
his protective order violation required proving a dishonest act or false statement, it is also not
admissible under Rule 609(a)(2).
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The Defendant states that his felony conviction for uttering a forged instrument was
simply for signing his name on the back of a check that did not belong to him and cashing it. As
the Defendant acknowledges, however, this conviction has an element of a dishonest act. It is,
therefore, admissible pursuant to Rule 609(a)(2). Of course, its admissibility is “confined to a
showing of the essential facts of the conviction[], the nature of the crime[], and the punishment.”
United States v. Commanche, 577 F.3d 1261, 1270 (10th Cir. 2009) (citation omitted). “Care
should be taken to the protect the accused as far as possible from being convicted because of past
conduct and not the crime for which he is being tried.” Id. at 1270-71.
As to the remaining convictions, pursuant to Rule 609(a)(1), the court considers the
following five factors:
(1) the impeachment value of the defendant's prior crimes; (2) the dates of the
convictions and the defendant's subsequent history; (3) the similarity between the past
crime and charged crime; (4) the importance of the defendant's testimony; and (5) the
centrality of the defendant's credibility at trial.
United States v. Smalls, 752 F.3d 1227, 1240 (10th Cir. 2014).
The Defendant argues that the 2018 conviction for escape was simply for walking away
from a transitional center and that the conviction has little impeachment value. The court does
not agree. While the fourth factor – the importance of the defendant’s testimony – may weigh
against admission, the remaining four factors weigh in favor of it. The Defendant’s having
walked away from his transition center tends to show his dishonesty, thus giving it impeachment
value. The date of the conviction is recent – 2018. The conviction is not similar to the one for
which he is being tried, so there is little danger the jury would convict here based on the prior
conviction. And finally, as the Defendant has argued the importance of his testimony, so is the
centrality of his credibility. The probative value of the Defendant’s 2018 escape conviction
outweighs its prejudicial effect to him; thus, it may be introduced in the event the Defendant
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testifies, but of course limited to the essential facts of the conviction, the nature of the crime, and
the punishment.
The Defendant argues that the burglary occurred in 2009. The parties inform the court
that the burglary conviction was on or about February 23, 2010, but do not state when the
Defendant was released from confinement for the conviction. According to public records, the
Defendant was sentenced to twelve months of confinement, and so was most likely released no
later than February 23, 2011.* As the District of New Mexico has recognized, it is unclear if the
ten-year period ends when a defendant is arrested, when he is indicted, or when his trial
testimony begins. See United States v. Phillips, 487 F.Supp.3d 1126, 1129 (D.N.M. 2020). In
any event, this case was filed on April 23, 2021, more than ten years later, and the Defendant
was indicted on May 13, 2021.
Accordingly, the burglary conviction may not be admitted unless its probative value,
supported by specific facts and circumstances, substantially outweighs it prejudicial effect.
Weighing the same five factors, the court finds that it does not. While there is of course an
element of dishonesty to any burglary, the court finds that because the conviction is more than
ten years old, it has little impeachment value here. The lack of similarity does reduce the risk of
unfair prejudice. Nevertheless, the Defendant’s testimony is important to his defense, and while
his credibility will be central at the trial, the ten-year old conviction has little impeachment
value. The probative value of the burglary conviction does not substantially outweigh its
prejudicial effect.
Accordingly, the Defendant’s motion in limine [Docket No. 109] is hereby granted in
part and denied in part as follows:
* http://publicaccess.co.galveston.tx.us/CaseDetail.aspx?CaseID=717011.
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1. 	The Defendant’s felony conviction for escape from the DOC or alternative incarceration
(Tulsa County case number CF-2018-02918) – DENIED.
2. 	The Defendant’s felony conviction for uttering a forged instrument (Tulsa County case
number CF-2017-00222) – DENIED.
3. 	The Defendant’s misdemeanor conviction for protective order violation (Tulsa County
case number CF-2015-03947) – GRANTED.
4. 	The Defendant’s felony conviction for burglary of a building in Galveston, Texas on or
about February 23, 2010 - GRANTED.
IT IS SO ORDERED this 8th day of March, 2022.
______________________________________
THE HONORABLE RONALD A. WHITE
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF OKLAHOMA
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