United States of America v. Quoc Nguyen

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

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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

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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

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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 cross-
examination. 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 cross-
motions 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

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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 cross-
examine 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 cross-
examined 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.

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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."); Orlando-
Figueroa, 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.

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