USA v. Brand et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
_________________
UNITED STATES OF AMERICA,
Plaintiff,
v. 	No. 1:23-cr-00953-KWR-2
NORA BACA,
Defendant.
MEMORANDUM OPINION AND ORDER OVERRULING IN PART DEFENDANT’S
OBJECTION TO RULE 609 IMPEACHMENT WITH PAST CONVICTIONS
THIS MATTER comes before the Court on the United States’ Notice of Potential Rule
609 Evidence (Doc. 104), and Defendant’s Response (Doc. 112). Should Defendant Nora Baca
(“Defendant”) testify, the Government plans to cross-examine her with four prior convictions
pursuant to the Federal Rules of Evidence (“Rule”) 609. Id. In her response, Defendant objects
to the Government’s plan to impeach her with the three older convictions but does not object to
impeachment with the fourth conviction. Doc. 112 at 2.
Having reviewed the briefing and applicable law, the Court finds that Defendant’s
objections are not well-taken as to two convictions for crimes of dishonesty. The Court reserves
ruling on the third conviction for a crime of dishonesty. Further, the Court finds that the mention
of the fourth conviction by name would unfairly prejudice Defendant should she testify.
Accordingly, Defendant’s objection is OVERRULED IN PART and RESERVED IN PART.
BACKGROUND
Defendant is charged with possession with intent to distribute 500 grams and more of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii) and 18 U.S.C. § 2 (Count
One), possession with intent to distribute 5 grams and more of methamphetamine, in violation of
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§ 841(a)(1), (b)(1)(B)(viii) (Count Two), and possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c) and Pinkerton v. United States, 328 U.S. 640
(1946) (Count Three). 	Doc. 150 at 1–2 (Second Superseding Indictment). 	Pursuant to Rule
609(b)(2), the Government filed notice that it intends to impeach Defendant with several prior
convictions should she decide to testify at trial. Doc. 104 at 1. Specifically, the Government plans
to cross-examine her regarding: (1) her 1999 conviction for state felony conviction for forgery, (2)
her 2004 state felony conviction for forgery, (3) her 2004 federal felony conviction for
identification document fraud, and (4) her 2012 federal felony conviction for possession with
intent to distribute methamphetamine. Id.
DISCUSSION
Under Rule 609, to attack a witness’s character for truthfulness by evidence of a prior
felony criminal conviction, the evidence “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 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 . . . a
dishonest act or false statement.” Fed. R. Evid. 609(a)(1)(B), (a)(2). Meanwhile, if more than 10
years have passed since the conviction or release from confinement for it, the conviction will only
be admitted if the “probative value, supported by specific facts and circumstances, substantially
outweighs its prejudicial effect.” Fed. R. Evid. 609(b)(1).
The Tenth Circuit “has long permitted the government to impeach the testimony of a
criminal defendant who takes the witness stand in the same manner as any other witness, including
reference to prior convictions.” United States v. Haslip, 160 F.3d 649, 654 (10th Cir. 1998). “The
implicit assumption of Rule 609 is that prior felony convictions have probative value.” See United
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States v. Howell, 285 F.3d 1263, 1268 (10th Cir. 2002) (quoting United States v. Burston, 159 F.3d
1328, 1335 (11th Cir.1998)). Therefore, “when a defendant in a criminal case takes the stand in
his own defense, his credibility may be impeached and his testimony attacked in the same manner
as any other witness, including reference to prior convictions.” United States v. Smith, 521 F.2d
374, 376 (10th Cir. 1975).
If a defendant testifies and if any of her prior convictions are admissible on cross-
examination, “the prior conviction, its general nature, and punishment of felony range [are] fair
game for testing the defendant’s credibility.” United States v. Commanche, 577 F.3d 1261, 1271
(10th Cir. 2009); see also United States v. Lopez-Medina, 596 F.3d 716, 738 (10th Cir. 2010)
(“Ordinarily, it is improper for the prosecution to examine into the details of the crime for which
the accused was convicted. The cross-examination should be confined to a showing of the essential
facts of convictions, the nature of the crimes, and the punishment.”).
However, “the trial court has discretion in limiting cross examination of an accused on the
subject of prior convictions.” 	See Smith, 521 F.2d at 376. 	“[T]he prosecution may introduce
evidence of the defendant’s past felony conviction to attack his character for truthfulness [only] if
the court determines that the probative value of admitting this evidence outweighs its prejudicial
effect to the accused.” 	United States v. Smalls, 752 F.3d 1227, 1240 (10th Cir. 2014) (internal
quotations omitted).
Here, the Government argues that Defendant can be properly impeached with the three
older convictions under Rule 609(b) and properly impeached with the fourth conviction under Rule
609(a)(1)(B). 	Id. at 1. 	Defendant objects to the Government’s impeachment with three older
convictions, arguing that they are of little probative value, particularly considering the risk of
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unfair prejudice.1 	Doc. 112 at 2. As to the fourth conviction, Defendant acknowledges that
impeachment is “presumptively available, and Ms. Baca understands that such impeachment will
occur should she testify.” Id.
As explained below, the Court finds that the Government may cross-examine Defendant
with her 2004 convictions for forgery and fraudulent identification documents pursuant to Rule
609(b). 	The Court reserves ruling on whether the Government may use the 1999 forgery
conviction until the Court can fully assess its probative value based on evidence and testimony
presented at trial.
The Government may also cross-examine Defendant with her 2012 possession with intent
to distribute methamphetamine conviction, with confinement ending in 2016, pursuant to Rule
609(a)(2). However, due to the similarity of the prior conviction with the charged offenses, under
Rule 403, the Government may not reveal the nature of the conviction due to the risk of unfair
prejudice to Defendant.
I. 	Defendant’s 2004 Convictions.
Turning first to Defendant’s 2004 convictions, the Court begins with the federal
identification fraud conviction noticed under Rule 609(b). The Government intends to impeach
Defendant with her prior felony conviction for fraud and related activity in connection with
identification documents, in violation of 18 U.S.C. § 1028(a)(6). 	Doc. 104 at 1; Doc. 60 at 6
(Amended Pretrial Services Report). 	For this crime, Defendant was convicted in 2004 and
1 In her Response, Defendant also requests that the Court prohibit the Government from
mentioning these prior convictions in voir dire, its opening statement, its closing statement, and
during examinations. 	Doc. 112 at 2. 	Since the Government has stated that it does not plan to
inform the jury of Defendant’s criminal history unless she testifies, see doc. 109 at 1, the Court
will not reach a ruling on Defendant’s additional request at this time.
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sentenced to 16 months of incarceration plus three years of supervised release. 	Doc. 60 at 6.
Following a revocation of her supervised release, Defendant was sentenced to six months custody
on September 26, 2006, putting her release date in 2007. 	Id. 	Therefore, if she served the full
sentence, the reference date is 2007. See United States v. Phillips, 487 F. Supp. 3d 1126, 1130–
31 (D.N.M. 2020) (applying calculation used in United States v. Jefferson, 925 F.2d 1242, 1256
(10th Cir. 1991)).
Since the conviction is 18–19 years old, the Government properly filed notice under Rule
609(b). Therefore, evidence of the conviction is only admissible if “its probative value, supported
by facts and circumstances, substantially outweighs its prejudicial effect.” Fed. R. Evid. 609(b)(1).
Although the Tenth Circuit has not articulated a test to determine whether a prior
conviction should be included under Rule 609(b)(1), the Court finds that the Smalls factors, applied
by the Tenth Circuit for Rule 609(a)(1)(B) balancing, are instructive under Rule 609(b).2
Therefore, the Court will consider: “(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.” Smalls, 752 F.3d at 1240.
2 See, e.g., Phillips, 487 F. Supp. 3d at 1131 (applying Smalls factors); United States v. Gonzales,
No. 1:23-CR-1620-KWR, 2025 WL 1592337, at *9 (D.N.M. June 5, 2025) United States v.
Romero, No. 21-CR-00559-JCH, 2023 WL 2413812, at *5 (D.N.M. Mar. 8, 2023) (same); United
States v. Reza, No. 21-CR-01042 RB, 2023 WL 1070474, at *5 (D.N.M. Jan. 27, 2023) (same).
But see United States v. Logsdon, No. CR-12-298-D, 2013 WL 5963012, at *3 (W.D. Okla. Nov.
7, 2013) (considering “1) whether the defendant’s credibility is a crucial issue; 2) whether the
impeachment value of the prior conviction is high; 3) whether the prior crime of conviction and
the charged crime are so similar as to invite improper inferences; and 4) whether the age of the
prior conviction and the defendant’s subsequent history suggest his rehabilitation.” (citing United
States v. Gilbert, 668 F.2d 668 F.2d 94, 97 (2d Cir.1981))).
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Here, the first, third, fourth, and fifth Smalls factors weigh in favor of admission. First, the
impeachment value of the identification fraud conviction is high because it is a crime of dishonesty
or false statement. See 18 U.S.C. § 1028(a) (requiring that defendant knowingly engage in the use
or possession of false identity documents); see also United States v. Dunson, 142 F.3d 1213, 1215
(10th Cir. 1998); United States v. Seamster, 568 F.2d 188, 190 (10th Cir. 1978). And as a crime
of dishonesty, it bears on Defendant’s credibility. See United States v. Mejia-Alarcon, 995 F.2d
982, 988–89 (10th Cir. 1993); see also United States v. Halbert, 668 F.2d 489, 495 (10th Cir. 1982)
(“First of all, the convictions were not unrelated to truthfulness. The convictions of mail fraud and
false pretenses were directly relevant, and as for the conviction of aggravated robbery, while
truthfulness is not an element it surely casts doubt on the robber’s regard for the truth.”); cf. United
States v. Barker, No. 21-CR-175-JFH, 2023 WL 2663241, at *4 (E.D. Okla. Mar. 28, 2023)
(“Crimes of violence, generally, have little impeachment value.”).
As to the second Smalls factor, in her response, Defendant argues that the age of the
identification fraud conviction makes it of little evidentiary or probative value. 	Doc. 112 at 2.
The Court recognizes that this conviction is 18–19 years old. 	However, courts have found that
convictions well beyond the ten-year mark can be properly admitted if the conviction has a bearing
on their credibility as a truthful witness. See, e.g., United States v. Spero, 625 F.2d 779, 78–81
(8th Cir. 1980) (court did not abuse its discretion in allowing twenty-two year old conviction
because credibility of defendant was directly weighed against credibility of government witness
who was cross-examined with convictions); United States v. Logsdon, No. CR-12-298-D, 2013
WL 5963012, at *2, 4 (W.D. Okla. Nov. 7, 2013) (allowing three convictions from 1990, 1997,
and 1997 involving false statements or deceptive conduct).
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Third, the prior conviction for identification fraud is dissimilar from the charged offenses
of possession with intent to distribute methamphetamine and possession of firearms in furtherance
a drug trafficking crime. 	Thus, it is unlikely that that a jury will be tempted to infer criminal
propensity, rather than use the conviction for its intended purpose—to impeach Defendant’s
credibility. See Seamster, 568 F.2d at 191 (“[P]rior convictions of a defendant for crimes identical
or similar to the one for which he is being tried should be carefully scrutinized by the trial court in
determining whether the probative value of such evidence outweighs the prejudice to the
defendant.”).
The fourth and fifth Smalls factors are of particular significance to the specific facts and
circumstances of this case. 	Whether Defendant was involved drug trafficking will be a central
issue for Counts One and Three at trial. 	See Doc. 150 at 1–2. 	Defendant’s testimony may be
important to refuting knowledge of this involvement. Defendant has indicated that she plans to
defend Count Two by asserting that she possessed the drugs for personal use. 	Doc. 165 at 1.
Defendant’s testimony may be important in establishing intent. If she does testify, her credibility
would crucial; the jury must be able to fully assess her propensity for truthfulness. This case may
well turn on which witness the jury chooses to believe. Therefore, taken together, these Smalls
factors tip in favor of allowing the 2004 identification fraud conviction for cross-examination. The
probative 	value 	of 	the 	conviction 	substantially 	outweighs 	its 	prejudicial 	effect, 	and 	the
Government may introduce the conviction for impeachment purposes.
Next, the Court turns to the second 2004 felony conviction: a state conviction for forgery,
resulting in a suspended sentence of approximately 1.5 years. Doc. 60 at 6. Here, the Court finds
that the Smalls factors also weigh in favor of introduction for the purpose of impeachment. Like
identification fraud, forgery is a crime “involving dishonesty or false statement” that is probative
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of Defendant’s capacity for truthfulness. See United States v. Dixon, 547 F.2d 1079, 1083 (9th
Cir. 1976). 	A conviction resulting in a suspended sentence may be used for impeachment
purposes. 	United States v. Hall, 588 F.2d 613, 615 n.4 (8th Cir. 1978). 	And the conviction is
dissimilar from the charged offenses at trial. Further, the Court finds that, for the same reasons
discussed above, the fourth and fifth Smalls factors weigh in favor of allowing the introduction of
the 2004 forgery conviction for the purposes of impeachment. 	If Defendant testifies, her
credibility may be a central issue at trial. The second 2004 conviction for a crime of dishonesty
speaks to her capacity for truthfulness. 	Therefore, the second conviction’s probative value
substantially outweighs its prejudicial effect, and it may be introduced for the purpose of
impeaching Defendant if she testifies.
Based on its review of the Smalls factors, the Court finds that the probative value of the
2004 forgery and identification fraud convictions substantially outweigh the risk of unfair
prejudice. Accordingly, Defendant’s objection is overruled as to these two convictions.
If Defendant testifies, the Court will allow the Government to cross-examine Defendant
about the 2004 convictions for the limited purpose of impeaching Defendant’s character and
testimony. 	The cross-examination should be confined to a showing of “the essential facts of
convictions, the nature of the crimes, and the punishment.” Smalls, 752 F.3d at 1240.
Furthermore, the Court may revise this Order based on the evidence and witness testimony
presented at trial.
II. 	Defendant’s 1999 Forgery Conviction.
Next, the Government notices that it intends to cross-examine Defendant with her 1999
state forgery conviction, where she was in custody until October 1999. Doc. 104 at 1; Doc. 60 at
5. Here, the impeachment value is high since this conviction was for a crime of dishonesty, which
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is probative of Defendant’s truthfulness. And the forgery conviction is dissimilar from the charged
drug and firearm offenses. 	Yet, this conviction is significantly older than the previous two
convictions, at 26 years old. 	And the Court recognizes that the inclusion of a third crime of
dishonesty will further discourage Defendant from testifying. 	Depending on the evidence and
testimony presented at trial, her testimony may be of high importance to the case. For this reason,
the Court will decline to rule on the third conviction until it can better assess the fourth and fifth
Smalls factors related to the importance of Defendant’s testimony and the centrality of her
credibility.
Accordingly, the Court will revisit the introduction of the 1999 state forgery conviction if
Defendant expresses a willingness to testify at trial.
III. 	Defendant’s 2012 Felony Conviction for Possession with Intent to Distribute
Methamphetamine.
Finally, the Court turns to Defendant’s 2012 felony conviction for possession with intent
to distribute 50 grams and more of methamphetamine, in violation of § 841(a)(1), (b)(1)(B). As
the Government points out, Rule 609(a)(1) applies since Defendant was released from confinement
in March 2016 and was not convicted for a crime of dishonesty. 	See Doc. 60 at 7. 	Although
Defendant does not object to impeachment with this conviction should she testify, see Doc. 112 at
2, the Court will still briefly conduct a balancing test pursuant to Rule 609(a)(1)(B) and Smalls.
Because the Court finds sua sponte that the mention of the conviction’s name will unfairly
prejudice Defendant, the Government cannot introduce its name should she testify.
To begin with, the 2012 conviction has some impeachment value as probative of
Defendant’s character. See Howell, 285 F.3d at 1268 (citing United States v. Burston, 159 F.3d
1328, 1336 (11th Cir.1998)). And less than ten years have passed since Defendant was released.
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But the fact that Defendant was involved with methamphetamine trafficking is not particularly
relevant to her character for truthfulness as a witness. And, more importantly, the conviction is
similar or identical to Counts One and Two. When a prior conviction and the charged offense are
of a similar nature, the danger of unfair prejudice increases since this similarity poses the risk that
the jury could consider the prior conviction as impermissible propensity evidence. See Seamster,
568 F.2d at 191. Accordingly, the Court carefully considers whether the probative value of the
evidence outweighs the prejudice to Defendant. 	See Commanche, 577 F.3d at 1270–71 (“Care
should be taken to protect the accused as far as possible from being convicted because of past
conduct and not the crime for which he is being tried.”).
Here, the name of the conviction tends to portray Defendant as a habitual drug trafficker.
Thus, by referencing the name of the 2012 conviction, there is a risk that the jury would convict
Defendant based on propensity evidence, and not on the merits of this case, is substantial. Hence,
although Rule 609 recognizes the admission of prior crimes for impeachment purposes, the Court
is not persuaded that the name of Defendant’s 2012 conviction has sufficient probative value to
overcome its prejudicial effect to Defendant.
Therefore, the Court will allow the Government, if Defendant testifies, to cross-examine
Defendant about her 2012 felony conviction for the limited purpose of impeaching Defendant’s
character and testimony. However, the Court will permit the Government to introduce only that
Defendant has the prior conviction, the date of the conviction, and the length of punishment. See
Butler v. United States, 408 F.2d 1103, 1105 (10th Cir. 1969) (“It is apparent that the witness’s
credibility was impeached inasmuch as he admitted to having committed at least three felonies.”).
The Government may not introduce the name of the 2012 conviction.
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CONCLUSION
IT IS THEREFORE ORDERED that:
 	If Defendant testifies, the Government may impeach Defendant as to her two 2004
convictions for forgery and identification fraud. Defendant’s objection is OVERRULED.
 	The Court RESERVES RULING on Rule 609 impeachment as to Defendant’s 1999 state
forgery conviction.
 	If Defendant testifies, the Government may not introduce the name of her 2012 conviction.
Nevertheless, at trial, if Defendant’s counsel or Defendant “purposefully and explicitly
opens the door on a particular (and otherwise inadmissible) line of questioning, such conduct
operates as a limited waiver allowing the government to introduce further evidence on that same
topic.” See Lopez-Medina, 596 F.3d at 731.
IT IS SO ORDERED.
______/S/_______________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE
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