In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3730
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A NTHONY L. R OGERS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 03 CR 78—Theresa L. Springmann, Judge.
____________
A RGUED N OVEMBER 1, 2007—D ECIDED S EPTEMBER 4, 2008
____________
Before P OSNER, W OOD , and S YKES, Circuit Judges.
S YKES, Circuit Judge. Federal Rule of Evidence 609(b)
severely limits the use of a prior conviction to impeach
a witness if a period of more than ten years has elapsed
since the conviction or the witness’s release from any
confinement imposed for that conviction. This appeal
presents the question of whether probation following a
prison term constitutes “confinement” for purposes of the
ten-year time limit under Rule 609(b)—in other words,
2 No. 06-3730
whether the ten-year clock begins to run upon the wit-
ness’s release from prison or the expiration of his
ensuing probation or parole. We conclude that probation
does not constitute “confinement” within the meaning of
Rule 609(b).
Anthony Rogers was tried in 2005 on charges of making
a false statement on a firearm-purchase form and being a
felon in possession of a firearm. He testified in his own
defense and was impeached with his 1993 conviction for
distribution of cocaine. Rogers was released from prison
on that conviction in 1994 after his sentence was modified
to probation; he then remained on probation supervision
until 1999. Because probation does not constitute confine-
ment, however, Rogers’s conviction fell outside the ten-
year time limit of Rule 609(b), and its admission for
impeachment purposes was therefore error. But given
the overwhelming evidence of his guilt, we conclude
the error was harmless and affirm his convictions.
I. Background
Anthony Rogers became the subject of a federal investi-
gation when he made two separate purchases of the same
make and model handgun in a single month—a sign of
possible straw purchases. These purchases required
Rogers to lie on federal firearms paperwork—specifically,
forms requiring (among other things) that he attest truth-
fully that he was the firearm’s “actual buyer.” One of the
guns was linked to a crime scene in Chicago. In addition,
Rogers had a felony conviction for cocaine dealing in Texas
No. 06-3730 3
in 1993, making it illegal for him to possess a firearm.1 See
18 U.S.C. § 922(g).
In the course of the investigation, ATF agents met
with Rogers at the apartment he shared with his girlfriend.
He admitted purchasing a firearm for a friend. He said he
was initially reluctant to do so because he thought it
might be illegal, but his friend ultimately persuaded him
to make the purchase. Two handguns were eventually
recovered from the apartment—one purchased in one
of the suspected straw purchases and another that Rogers
had purchased in 1992 or 1993 when he was in the military.
Rogers was indicted for making a false statement to
a federally licensed firearms dealer, see 18 U.S.C.
§ 924(a)(1)(A), and being a felon in possession of a firearm,
see 18 U.S.C. § 922(g)(1). The case proceeded to a one-day
jury trial on April 12, 2005. Rogers took the stand in
his own defense, admitting the straw purchase but claim-
ing he thought his answer to the “actual buyer” question
on the federal form was truthful. He also testified that the
two guns found in the apartment had once been his but
that he gave them to his girlfriend and never “messed”
with them. The government impeached him with his 1993
conviction for cocaine dealing. Rogers’s girlfriend also
1
Rogers had a firearm permit issued by the State of Indiana,
and the law at that time allowed a same-day firearm purchase
upon presentation of a valid carry permit. The government
advised us in its brief that at the time, Indiana apparently was
not regularly checking for out-of-state convictions when
issuing such permits, a procedure that has since been changed.
4 No. 06-3730
testified; she said Rogers gave her the guns for her pro-
tection. Rogers was convicted on both counts.
The district court made two posttrial rulings on the
admission of Rogers’s prior conviction. In the first ruling,
the court erroneously believed that the conviction was
less than ten years old and therefore admissible under
Federal Rule of Evidence 609(a) on a showing that the
probative value of this evidence outweighed its prejudi-
cial effect. This ruling was based on the court’s initial view
that although Rogers had been released from prison on
the 1993 conviction a year later, in 1994—outside the rule’s
ten-year window—he had remained on probation until
1999, and therefore the conviction fell within the ten-year
time limit. On Rogers’s motion for a new trial, however,
the court corrected itself, holding that the time Rogers
spent on probation did not bring the conviction within
the time limit. Rule 609(b) requires that convictions out-
side the ten-year time limit satisfy a more strenuous
standard: the conviction’s probative value must substan-
tially outweigh its prejudicial effect. The district court
concluded that the 1993 cocaine-dealing conviction did not
meet this more demanding standard. But the court found
the error harmless and denied the motion for a new trial.
II. Discussion
The sole issue in this appeal is whether Rogers’s 1993
conviction was properly admitted to impeach him as a
witness. Rule 609 of the Federal Rules of Evidence governs
the admissibility of a witness’s prior convictions for
No. 06-3730 5
impeachment purposes and permits impeachment of an
accused as a witness if the probative value of his prior
conviction outweighs its prejudicial effect. The rule
generally excludes convictions more than ten years old,
however:
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
for 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 out-
weighs its prejudicial effect.
F ED. R. E VID. 609(b). The ten-year time limit thus runs from
the date of conviction or “the release of the witness from
the confinement imposed for that conviction,” whichever
is later. There is no question here that the date of Rogers’s
conviction, 1993, falls outside the ten-year time limit, as
does the date of his release from prison, 1994. We must
decide whether the probation that followed his release
from prison for that conviction (essentially, his parole) may
be said to constitute “confinement imposed for that
conviction.”
We conclude that it may not. This is a question of first
impression in this circuit, although the government notes
that our decision in United States v. Gant, 396 F.3d 906 (7th
Cir. 2005), refers to the date of the defendant’s discharge
from parole as the apparent starting point for the cal-
culation of the ten-year time period. But Gant made no
6 No. 06-3730
more than a passing reference to the defendant’s dis-
charge from parole; the parties there did not dispute the
age of the prior conviction, and the decision therefore did
not affirmatively address whether parole equalled “con-
finement” for purposes of Rule 609(b). Id. at 909. Indeed, a
close reading of Gant reveals that it would have been
unnecessary for the court to address this issue because
the defendant’s release from prison and his discharge
from parole were within Rule 609(b)’s ten-year time
limit. See id. (noting that Gant was released from prison
in the same year as his discharge from parole).
In United States v. Daniel, 957 F.2d 162, 167-68 (5th Cir.
1992), the Fifth Circuit concluded that “confinement” for
purposes of calculating the ten-year time limit in Rule
609(b) does not include parole supervision. Daniel relied
in part on the historical notes to Rule 609, which noted
that the time limit would begin to run from “the date of
the release of the witness from confinement imposed for
his most recent conviction, or the expiration of the period
of his parole, probation, or sentence granted or im-
posed.” But in 1971 the revised draft of the rule contained
the present language, which runs the ten-year time
period from “the date of the conviction or of the release
of the witness from the confinement imposed for that
conviction.” The Fifth Circuit concluded that the text of
the rule as adopted would not support an interpretation
that measured the ten-year time span from the end of
parole. Id. at 168. We agree. Rule 609(b) unambiguously
starts the clock at the date of conviction or release from
“confinement,” without any mention of periods of proba-
tion or parole.
No. 06-3730 7
The government views “the defendant’s discharge
from parole [ ]as the appropriate date of his ‘release from
confinement’ ” but does not explain why the term “con-
finement” as used in Rule 609(b) should be read to include
periods of community supervision. Nothing in the rule
itself suggests such an interpretation. Accordingly, we
hold that “confinement” for purposes of the ten-year
time limit in Rule 609(b) does not include periods of
probation or parole.
In this circuit we have now defined both the starting
and ending points for the calculation of Rule 609(b)’s ten-
year time limit. The clock starts at the witness’s release
from any physical confinement, or in the absence of
confinement, the date of the conviction. See United States v.
Rein, 848 F.2d 777, 782 (7th Cir. 1988) (start date is not the
date of the criminal act but the date of conviction). In
United States v. Thompson, 806 F.2d 1332, 1339 (7th Cir.
1986), we held that the end date of the time limit for
impeaching convictions is the start of the trial at which
the witness is testifying. Other circuits have confronted
the additional question of whether a revocation of parole
stops the running of the ten-year clock. See, e.g., United
States v. Gray, 852 F.2d 136, 139 (4th Cir. 1988) (stopping the
time where the defendant had been reincarcerated after a
parole violation); United States v. McClintock, 748 F.2d 1278,
1288-89 (9th Cir. 1984) (same for probation violations
that implicate the original offense conduct). But that is a
matter for another case. Here, we agree with the second of
the district court’s posttrial rulings that it was error to
admit Rogers’s prior conviction under the more lenient
standard of Rule 609(a). More than ten years elapsed since
8 No. 06-3730
his release from prison in 1994, triggering the more strin-
gent admissibility standard of subsection (b).
As we have noted, Rule 609(b) is not an absolute bar to
the admission of a prior conviction that is more than ten
years old; it is, instead, an asymmetrical balancing test, one
that requires the probative value of a prior conviction to
substantially outweigh the prejudice caused by its admis-
sion into evidence. The district court concluded that
Rogers’s cocaine conviction did not meet this more rigor-
ous test, and indeed, we have said that impeachment by
a conviction falling outside the rule’s ten-year time
limit should be permitted only in rare and exceptional
circumstances. See United States v. Fallon, 348 F.3d 248, 254
(7th Cir. 2003) (citing United States v. Shapiro, 565 F.2d 479,
481 (7th Cir. 1977)). Here, the government does not
even attempt to argue that Rogers’s cocaine conviction
qualifies, and we are hard-pressed to disagree with this
implicit concession. Accordingly, we agree with the
district court’s conclusion that it was error to admit the
prior conviction for impeachment purposes.
We also agree, however, with the district court’s assess-
ment that in this case the error was harmless in light of
the evidence presented at trial. An evidentiary error
warrants reversal only when the error had “ ‘a substantial
and injurious effect or influence on the jury’s verdict.’ ”
United States v. Redditt, 381 F.3d 597, 601 (7th Cir. 2004)
(quoting other source). Under this standard, where a
limiting instruction is given or if the evidence is very
strong, the error usually will be harmless. Id. Here, the
evidence offered against Rogers was so overwhelming
No. 06-3730 9
that the erroneous admission of his prior conviction for
impeachment purposes could not have had a serious
effect on the verdict.
First, the jury heard evidence that Rogers had admitted
knowingly making a false statement on ATF Form 4473
when he purchased the handgun for a friend while claim-
ing to be the actual buyer. See United States v. Howell, 37
F.3d 1197, 1202 (7th Cir. 1994); see also United States v.
Obiechie, 38 F.3d 309, 315 (7th Cir. 1994) (explaining that
§ 924(a)(1)(A) does not require knowledge of the law, only
knowledge that the statement is in fact a false one). While
Rogers claimed at trial that he believed his answer was
truthful, the jury knew that Rogers had previously ac-
knowledged that he suspected the purchase was illegal all
along. Moreover, the government introduced evidence
suggesting that Rogers had a penchant for making
false statements on official forms, having lied on an
application for military reenlistment and an application
for an Indiana handgun permit.
Second, the government presented ample evidence to
prove that Rogers possessed both of the firearms found
in the apartment, in violation of § 922(g)(1). On this count,
the government was required to prove that (1) Rogers
had a prior felony conviction (a fact to which Rogers
stipulated pursuant to Old Chief v. United States, 519 U.S.
172 (1997));2 (2) he possessed a firearm; and (3) the firearm
2
Rogers suggests that the admission of his prior conviction for
impeachment purposes violated the rule of Old Chief v. United
(continued...)
10 No. 06-3730
traveled in or affected interstate commerce. 18 U.S.C.
§ 922(g)(1). Constructive possession is sufficient, and
under that theory our case law requires only that a defen-
dant knowingly have “the power and the intention at a
given time to exercise dominion and control over an
object, either directly or through others.” United States v.
Alanis, 265 F.3d 576, 592 (7th Cir. 2001) (internal quotation
marks omitted). Also, constructive possession may be
joint, see id., and here, the evidence of joint constructive
possession of the firearms was substantial. Rogers
claimed that the firearms belonged to his girlfriend, but
they shared the apartment where the firearms were kept
(he spent more than 80 percent of his time living with her
at that residence); he gave them to her and knew precisely
where they were usually stored; and he worked and
lived in close proximity to them.
2
(...continued)
States, 519 U.S. 172, which permits a defendant to stipulate to
his prior felony conviction and thereby preclude the govern-
ment from introducing evidence of the conviction to prove the
prior-felony element of the offense. Nothing in Old Chief,
however, precludes impeachment by prior conviction under
Rule 609 when the defendant in a felon-in-possession prosecu-
tion testifies as a witness in his own defense. See United States
v. Montgomery, 390 F.3d 1013 (7th Cir. 2004) (defendant’s
prior felony admissible for impeachment in § 922(g)(1) prosecu-
tion); United States v. Smith, 131 F.3d 685, 687-88 (7th Cir. 1997).
No. 06-3730 11
In short, the evidence on both counts was plentiful and
strong. Accordingly, the admission of Rogers’s 1993 drug
conviction, though error, was harmless.
A FFIRMED.
9-4-08