Appeal from a judgment of conviction entered in the District Court for the Southern District of New York (Leonard B. Sand, J.) following a trial before the court and jury on bank robbery charges. Affirmed. Judge Newman concurs with a separate opinion.
Before: OAKES and NEWMAN, Circuit Judges, and MISHLER, District Judge.*fn*
Donald Washington appeals from his conviction, after a jury trial, on two counts of bank robbery. He was sentenced by the court to six years imprisonment. He contends that the trial judge erred in ruling a prior robbery conviction admissible for impeachment purposes pursuant to Fed.R.Evid. 609.
Appellant was tried before Judge Sand and a jury on August 15-18, 1983 for the robbery of the Westchester Federal Savings Bank on April 2, 1983. At the beginning of the trial, Washington advised the court that he had prior convictions for bank robbery and larceny. He moved for a ruling in limine precluding the government from cross-examining him on the robbery conviction. He argued that the prejudicial effect of admitting the conviction outweighed its probative value.
Judge Sand rejected the argument and ruled that inquiry into the prior robbery was proper. He ruled that since the robbery fell within the ten year period stated in Fed. R. Evid. 609(a) and since Washington had conceded that his more recent larceny conviction was admissible, there were no "compelling circumstances" requiring exclusion. Defendant claims he chose not to testify in his own defense because of the trial judge's ruling on the admissibility of proof of the prior robbery conviction. He offered an alibi defense through the testimony on his eighteen-year old daughter.
Rule 609 of the Federal Rules of Evidence provides:
(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.
(b) Time Limit. 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 or of the release of the witness from the confinement imposed fro that conviction, whichever is the later date, 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. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
Defendant had been convicted on a prior robbery charge on August 22, 1972. He was released from prison on August 22, 1973. The trial appealed from took place on August 15-18, 1983. Defendant argues that the age of his prior conviction, although within the ten year limit imposed by the rule, reduced its probative value. In addition, the fact that the prior conviction was for a crime very similar to the one on trial made its introduction highly prejudicial. The prosecution takes the position that the prior conviction bears directly on defendant's credibility and is admissible under the rule.
At oral argument the question was raised whether the trial court's ruling was reviewable by this court since defendant did not testify. The Circuits have split on this issue.*fn1 The Second Circuit has not expressly discussed the issue but it has reached the merits in cases in which defendant elected not to testify, thereby implying that the ruling is reviewable on appeal. United States v. Vanderbosch, 610 F.2d 95 (2d Cir. 1979); United States v. Hayes, 553 F.2d 824 (2d Cir.), cert. denied, 434 U.S. 867, 98 S. Ct. 204, 54 L. Ed. 2d 143 (1977). See also United States v. Figueroa, 618 F.2d 934 (2d Cir. 1980). The issue is now before the United States Supreme Court.*fn2 We turn to the merits.
Defendant's defense was based on a theory of mistaken identity and on his alibi that he was with his children during the time the bank robbery took place. He claims the alibi defense was presented by his eighteen-year-old daughter because he chose not to take the witness stand and testify in his own defense in light of the ruling. He argues that his daughter was not a very effective witness and therefore the judge's ruling prevented him from presenting his best defense to the jury.
Defendant failed to inform the trial judge of the substance of his testimony with a degree of precision sufficient to allow the trial judge to balance the probative value of the testimony against the prejudicial effect of the conviction. Without adequate notification of what defendant's testimony will reveal, the trial judge cannot "compare the relevance of the prior conviction to credibility with the importance to [defendant's] defense of having him testify free from the prejudice which might be created by reference to it." United States v. Costa, 425 F.2d 950, 954 (2d Cir. 1969), cert. denied, 398 U.S. 938, 90 S. Ct. 1843, 26 L. Ed. 2d 272 (1970). We adopt the procedure outlined by the Ninth Circuit Court of Appeals in United States v. Cook, 608 F.2d 1175 (9th Cir. 1979), cert. denied, 444 U.S. 1034, 100 S. Ct. 706, 62 L. Ed. 2d 670 (1980). "To preserve the issue for review, a defendant must at least, by a statement of his attorney: (1) establish on the record that he will in fact take the stand and testify if his challenged prior convictions are ...