United States v. Hamilton

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 93-2837

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JON PAUL HAMILTON and
ALLEN LAMAR McMURREY,

Defendants-Appellants.

Appeal from the United States District Court
for the Southern District of Texas
(March 8, 1995)

Before KING, EMILIO M. GARZA and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

The only issue in this criminal appeal is whether the district

court committed reversible error in refusing to admit, for

impeachment purposes, evidence of certain past criminal proceedings

against the star government witness. In light of the overwhelming

amount of additional impeachment evidence the appellants were able

to introduce, we find no basis upon which to reverse appellants'

convictions, and we AFFIRM the judgment below.
 BACKGROUND

Defendant-appellants Jon Paul Hamilton and Allen Lamar

McMurrey were convicted by a jury on July 1, 1993 for burglary of

a post office1, theft of credit cards and U.S. Treasury checks from

the mail2, counterfeiting of U.S. Treasury checks3 and sale of

counterfeited checks4. A co-conspirator, Byron Bernard York, was

charged and tried along with the appellants and was convicted on

four counts, but he is not a party to this appeal. Hamilton and

McMurrey do not challenge the sufficiency of the evidence to

support their convictions. Both stipulated or testified at trial

that (1) they broke into a Houston post office on September 7, 1992

and stole numerous checks, credit cards and other mail; (2) they

used the stolen U.S. Treasury checks to produce counterfeit checks

by scanning an original into a personal computer, manipulating the

check numbers and printing the false checks on a color printer; (3)

they arranged for the sale of 83 stolen credit cards and received

the proceeds from the sale; and (4) they printed and planned to

sell about $2 million worth of counterfeited Treasury checks.

However, Hamilton and McMurrey claimed as a defense that

Calvin Stout, who became a paid government informant and the

principal prosecution witness at trial, entrapped them into

committing the crimes. Stout, Hamilton and McMurrey met in the

1
18 U.S.C. § 2115.
2
18 U.S.C. §§ 1029(a)(3), 1708.
3
18 U.S.C. § 471.
4
18 U.S.C. § 473.

2
spring or summer of 1992 when they were all attending Alcoholics

Anonymous meetings in Houston. According to the defendants'

testimony, they never would have committed any of the crimes but

for Stout's overreaching and constant pressure on them. Both

defendants claimed that from the night they met Stout, he

repeatedly urged them to join him in various criminal enterprises

and that they continually rejected these suggestions. Finally,

McMurrey testified, Stout "essentially wore [him] down and won

[him] over," and "manipulated me into thinking, well, hell, this

will be easy." Hamilton also testified that Stout made the crimes

sound "real easy." McMurrey and Hamilton testified that they then

joined Stout in his proposed plan to burglarize a Federal Express

drop box and a post office, and later participated in the

counterfeiting and other crimes. They also testified that Stout

made frequent references to his fictional contacts, "Hank" and

"Guido," and hinted that "legs would get broken" if the defendants

backed out of the deal. Defense counsel emphasized the fact that

McMurrey and Hamilton, recovering alcoholics in their early 20s,

were especially vulnerable and susceptible to entrapment by the 46-

year-old Stout, who was shown to be experienced, manipulative and

a practiced liar. A psychiatrist testified that Hamilton, in

particular, suffered from depression that impaired his judgment and

made him especially vulnerable to being misled.

Stout, on the other hand, testified that McMurrey, Hamilton

and York committed the post office burglary on their own without

any urging from him, and that in fact the defendants did not tell

3
Stout about the burglary until two days after it took place. After

the defendants gave Stout a stolen credit card to use, Stout

contacted a federal postal inspector and began cooperating with law

enforcement authorities to gather information on McMurrey, Hamilton

and York. Recorded conversations between Stout and the defendants

were introduced at trial. In these conversations, the defendants

arranged for Stout to sell 83 stolen Texaco credit cards, and they

received and divided up the proceeds. They also gave Stout a sample

counterfeited U.S. Treasury check to show to "Hank," Stout's

alleged banker friend, to determine whether it was good enough to

cash. They also had conversations with Stout regarding the

production methods used to manufacture the counterfeited checks and

the quality of the finished checks. The prosecution pointed out

that, in the taped conversations, Hamilton and McMurrey did not

show any moral reluctance to go through with the crimes, or any

sign that they were being coerced. Rather, they discussed going to

Europe for six months on the proceeds and made comments like,

"Maybe we can all meet up [and] do the Paris thing ... French whore

houses," and "It's so exciting ... [i]t seems too good to be true."

When Stout suggested that they sell the stolen American Express

card they had been using, McMurrey said, "I mean sh-- man, we were

thinking about going out tomorrow maybe and buying 1,000 more

dollars worth of stuff." Hamilton added, "I think we are going to

hold on to that." The defense claimed that Stout came up with and

pushed the idea to try to cash some of the business checks that had

been stolen from the post office. However, on the tape, Hamilton is

4
the first to suggest this. During a conversation about going

Europe, Hamilton said, "[H]ow much do you think we have in checks

just sittin' in there; why can't we cash those?" Stout said, "What

do you got?" Hamilton replied, "F---, checks for $50,000." The

taped conversations also contain hints that Hamilton and McMurrey

were committing crimes on their own even before they became

involved with Stout. While the group was in Hamilton and McMurrey's

apartment printing the checks, Stout asked whether a particular

piece of equipment was the printer. Hamilton replied, "That's the

laminator. That's the laminator that I make my fake ID's on, the

laminator machine." On the same tape, the men discussed a mutual

friend who was aware of some of Hamilton and McMurrey's activities

and apparently didn't approve:

McMurrey: I think he got a little upset when we started every night
going in breaking into buildings and stealing sh--.
Stout: Well.
McMurrey: I mean cause he thought, you know, we were doing like the
sneakers trip.
Stout: The what trip?
Hamilton: Like high tech.
Stout. Oh. Well.
McMurrey: And what it finally boiled down to is we were heaving
bricks through windows.
Hamilton: Is that before I knew how to pick locks?
Stout: I still ah, am amazed that you went and made two trips
[during the September 7 post office burglary].
Hamilton: We've done like two trips like every place. ... There's
only so much room in the car.

McMurrey, Hamilton and York were arrested on September 23, 1992

while on the way to a bank, along with Stout, to cash four of the

counterfeit checks. A warrant search at Hamilton and McMurrey's

apartment revealed counterfeit checks totalling $1,900,000, stolen

Social Security checks, five computers, a scanner, a high-quality

5
color printer, laminating machines, cutting boards, bolt cutters,

walkie-talkies, a videotape on breaking and entering, tools for

picking locks, the front cover to a Federal Express drop box, and

receipts showing the use of stolen credit cards and redemption of

stolen utility bearer coupons. After they were arrested, McMurrey,

Hamilton and York gave written statements admitting their

participation in the charged crimes, but not mentioning any

involvement by Stout in the post office and Federal Express

burglaries. Additionally, the statements given after arrest

contradicted the entrapment defense raised at trial in several

areas, including who originated the idea for the burglaries and the

counterfeiting.

DISCUSSION

The defendant-appellants challenge their convictions on the

basis that the district court refused to allow them to impeach

Stout by questioning him about certain prior criminal proceedings.

They claim that impeachment of Stout was especially important

because the viability of their entrapment defense boiled down to a

credibility choice between their testimony and Stout's testimony.

The issue we address, therefore, is whether district court abused

its discretion or violated Hamilton and McMurrey's Sixth Amendment

right to confront the witness against them by excluding evidence of

Stout's (A) pending felony deferred adjudication; (B) prior

pardoned felony convictions; or (C) pending misdemeanor charges.

Pending Deferred Adjudication for Felony Theft

In 1992, Stout pleaded guilty in Texas state court to felony

6
theft by check, for which he had been indicted in the fall of 1991.

Adjudication of guilt was deferred, and on September 1, 1992, Stout

was given a five-year term of probation and was ordered to pay a

$500 fine and $1,800 restitution. As of the time of Hamilton and

McMurrey's trial in June 1993, Stout was not paying the restitution

as ordered. The district court refused to allow the defendants to

introduce the court records of the deferred adjudication to impeach

Stout, on the basis that when adjudication of guilt is deferred,

there is no "conviction" to be admitted. However, the court did

allow many of the underlying facts relating to Stout's 1992 theft-

by-check prosecution, deferred adjudication and ordered restitution

payments to come into evidence: (1) When Stout was asked on cross-

examination whether he had been convicted of a felony in the last

10 years, he replied, "I'm on deferred adjudication." (2) During

direct examination, Stout testified that in 1992, "I had a hot

check out that I was making restitution on," and that "my cash flow

situation was somewhat limited." (3) McMurrey testified that when

he first met Stout in the spring of 1992, Stout told him he was

"currently under indictment." (4) Another witness, who attended AA

meetings with Stout, testified that Stout told him in 1992 that he

had legal problems and had been ordered to pay restitution, and

that he would go to jail if he didn't pay it. (5) The defense

called to the stand a man who was Stout's victim in the underlying

felony theft case. The victim, a gun show vendor who sold Stout a

pistol and a framed piece of art, testified that Stout had given

7
him a worthless check and that Stout had been ordered to pay

restitution, but had only paid part of it. (6) On cross-

examination, Stout admitted that he was not current on his

restitution payments.

Rule 609 of the Federal Rules of Evidence permits a witness to

be questioned about any felony conviction or any conviction of a

crime involving "dishonesty or false statement, regardless of the

punishment." The district court in this case limited cross-

examination on Stout's deferred adjudication because deferred

adjudication is not a "conviction" under Texas law.5 Although

"conviction" status for the purpose of Rule 609 is properly

determined by federal law rather than state law,6 we hold that the

district court's ruling was not an abuse of discretion. The few

Fifth Circuit cases touching on this issue have indicated that when

adjudication of guilt is deferred, there is no "conviction." See

United States v. Georgalis, 631 F.2d 1199, 1203 (5th Cir.

1980)(holding that Rule 609 was violated when prosecutor attempted

to cross-examine defendant about his deferred adjudication for

5
See, e.g., Jones v. State, 843 S.W.2d 487 (Tex. Crim. App.
1992)(Defendant sought to impeach prosecution witness with prior
deferred adjudication and probation for theft; Texas court held
that deferred adjudication is not a conviction and that denying
defendant the right to impeach a witness with deferred adjudication
probation does not deny the defendant's constitutional right of
confrontation), cert. denied, 113 S. Ct. 1858 (1993); see also
Baehr v. State, 615 S.W.2d 713, 716 (Tex. Crim. App. 1981); Callins
v. State, 780 S.W.2d 176, 196 (Tex. Crim. App. 1989)(opinion on
rehearing), cert. denied, 497 U.S. 1011 (1990).

6
See 28 CHARLES A. WRIGHT AND VICTOR J. GOLD, FEDERAL PRACTICE AND
PROCEDURE § 6133 & n.31 (1993); United States v. Turner, 497 F.2d 406
(10th Cir. 1974), cert. denied, 423 U.S. 848 (1975).

8
felony check fraud); United States v. Dotson, 555 F.2d 134, 135

(5th Cir. 1977)(holding that defendant truthfully stated on firearm

purchase form that he had no felony convictions, given the fact

that adjudication of guilt was deferred and sentence suspended on

his prior offense of felony receipt of a stolen car); see also

Martinez-Montoya v. I.N.S., 904 F.2d 1018 (5th Cir. 1990)(holding

that petitioner's prior guilty plea and deferred adjudication for

forgery did not amount to a "conviction" within the meaning of the

Immigration Reform and Control Act, 8 U.S.C. § 1255a).

Even though Stout's deferred adjudication is not a

"conviction," Hamilton and McMurrey argue, it shows motive and bias

because Texas law allows for early termination of probated

sentences, giving Stout a motive to lie on the stand to curry favor

with the prosecution. However, the district court determined that

Stout had not entered into any plea agreement or discussions with

law enforcement or his probation officer. Appellants argue that

Stout may have nevertheless been shading his testimony in an effort

to please authorities, especially in the light of the fact that he

was in default on his ordered restitution payments and thus in

danger of having his probation revoked.

We hold that the district court admitted enough information

about the deferred adjudication for the defendants to adequately

argue Stout's possible bias to the jury. We will not disturb the

district court's ruling.

Pardoned Felony Convictions

Calvin Stout was convicted of armed robbery and theft by

9
check, both in 1973 in Oklahoma. He was sentenced to five years in

prison on each case, but was released from confinement that same

year. In 1975, the governor of Oklahoma granted Stout a pardon on

these two felony convictions. Stout was granted "a full and free

pardon." The pardon certificate, a pre-printed form, stated that

"since [Stout's] release, it appears [that Stout] ... has
conformed to all rules and conditions, and that
documentary evidence has been submitted to show that he
has not been arrested nor violated the law and that he
has conducted himself in a law-abiding and upright
manner."

The district court excluded the convictions for two reasons,

because of the 1975 pardon and under Rule 609(b) because they were

more than 10 years old.7 However, McMurrey was allowed to testify

that Stout told him he had been to prison before.

Rule 609(c) and the accompanying commentary draw a distinction

between pardons based on actual innocence or a finding of

rehabilitation (which make the underlying conviction inadmissible

for impeachment) and pardons granted solely to restore civil rights

(which have no relevance to character and do not impair the

admissibility of the underlying conviction). FED. R. EVID. 609(c) &

accompanying NOTES OF COMMITTEE ON THE JUDICIARY HOUSE REPORT NO. 93-650;

see also United States v. Wiggins, 566 F.2d 944, 946 (5th

Cir.)(holding that Rule 609 shows "a desire to accord a controlling

7
"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 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 outweighs its prejudicial
effect." FED. R. EVID. 609(b) (emphasis added).

10
consideration to rehabilitation as opposed to executive grace or

judicial invalidation"), cert. denied, 436 U.S. 950 (1978). The

district court refused to recognize the distinction draw by Rule

609, instead ruling generally that "for a pardoned crime, the slate

is wiped clean." McMurrey and Hamilton claim that the "good

behavior" referred to in Stout's certificate of pardon is not an

express finding of rehabilitation or actual innocence. The

government, on the other hand, argues that a reasonable

interpretation of Stout's pardon is that it was based on a finding

of rehabilitation.

However, we need not decide whether the pardon alone would

have made the convictions inadmissible. Because the convictions

were more than 10 years old, their admissibility is governed

instead by Rule 609(b). See United States v. Felix, 867 F.2d 1068,

1074 n.9 (8th Cir. 1989). We have read Rule 609(b) to say that the

probative value of a conviction more than 10 years old is by

definition outweighed by its prejudicial effect. "The general rule

is inadmissibility. It is only when the court admits evidence of a

conviction over ten years old that the court must engage in a

balancing test on the record." United States v. Estes, 994 F.2d

147, 149 (5th Cir. 1993). In addition, the district court has broad

discretion in its application of Rule 609(b). Id. at 148. Moreover,

even if the court had erred in excluding evidence of Stout's 20-

year-old convictions, "evidentiary rulings constitute reversible

error only when they affect `substantial rights' of a party." FED.

R. CRIM. P. 52; United States v. Livingston, 816 F.2d 184, 190-91

11
(5th Cir. 1987). As we will discuss, so much additional impeachment

evidence was admitted in this case that further impeachment of

Stout with these remote convictions would not have affected the

trial so as to require reversal in this case. See id. at 191.

Pending Misdemeanor Charges

At the time of trial in June 1993, Stout had a misdemeanor DWI

charge pending in Harris County, Texas. He also had an open warrant

and a pending misdemeanor theft charge in Travis County, Texas. The

district court excluded the evidence, ruling that

"[p]ending misdemeanor charges are inadmissible on the
representation from the government that there is no
cooperation, understanding or any other form of
relationship between the United States, its agents,
agencies and any of the State agencies that might be
interested in these prosecutions."

However, despite the ruling, the defense was allowed to elicit

similar evidence from Stout's former girlfriend; she testified that

Stout was in need of money in 1988 because "there was a warrant out

for his arrest for hot checks in Austin, Texas. The checks totaled

$1,000 and he asked me to borrow money from one of my best friends

so that he wouldn't have to go to jail."

Hamilton and McMurrey claim that Stout's misdemeanor charges

were admissible under Rule 404(b)8 to show Stout's bias,

8
Rule 404(b) provides that "[e]vidence of other crimes, wrongs
or acts is not admissible to prove the character of a person in
order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident." When a defendant seeks to
introduce "prior bad acts" evidence against a government witness,
this is often called "reverse 404(b)" evidence, because it is being
used against the government rather than against the defendant.

12
opportunity and motive to give false testimony in order to

negotiate for favorable resolution of the charges. However, the

district court found no indication whatsoever that Stout had any

agreement or pending negotiations to that effect. In addition,

Stout testified that he had received no promises by anyone in

connection with his testimony in this case and his pending

misdemeanor charges. Stout even stated that he was unaware of his

pending warrant in Travis County. We cannot see that the district

court abused its discretion in this ruling. And again, we conclude

that so much additional impeachment evidence was admitted in this

case that further impeachment of Stout with the pending misdemeanor

charges could not have affected the trial so as to prejudice

Stout's substantial rights. See FED. R. CRIM. P. 52; Livingston, 816

F.2d at 191.

Conclusion

We hold that the evidentiary rulings at issue did not infringe

upon Hamilton and McMurrey's Sixth Amendment right to confront

Stout, and the district court did not abuse its discretion in

placing reasonable limits on the appellants' cross-examination.

Listed below is the overwhelming additional impeachment evidence

that the defendant-appellants were allowed to introduce to attack

Stout and his testimony. In addition to eliciting information about

Stout's deferred adjudication and obligation to pay restitution,

the defendants introduced the following evidence: (1) Stout

admitted on cross-examination that he had been involved in dealing

cocaine, he had lied on his resume and he had held himself out to

13
be a lawyer. (2) An attorney testified that Stout had contacted her

and offered, for a fee, to testify falsely on behalf of her client.

(3) An attorney testified that his firm fired Stout as a legal

assistant after Stout falsely held himself out as a lawyer and

collected funds from a client. (4) Another attorney testified that

his firm fired Stout as a paralegal after learning that Stout lied

on his resume about attending Vanderbilt University and law school

in Oklahoma, and that Stout lied that he was dying of rectal

cancer. Stout was also fired because he often arrived at work drunk

or hung over and because he improperly used confidential firm

information to his own advantage. (5) A former girlfriend of

Stout's testified that Stout is not truthful and that she doesn't

trust him. (6) Another former girlfriend testified that Stout

falsely told her he was an attorney, failed to repay her money she

loaned him for a business venture, falsely told her that he was

dying from a rare blood disease, and stole her car and many of her

belongings while she was having surgery. She added that she is

afraid of Stout and had to undergo therapy to recover from her

relationship with him. (7) McMurrey testified that Stout told him

that he had been in a lot of trouble with the law, had been to

prison before, and was currently under indictment. (8) Two

witnesses who attended AA with Stout testified that Stout offered

to sell them illegal firearms and a shoulder-held rocket. (9)

Another AA acquaintance testified that Stout tried to enlist his

help in setting up a prostitution operation in which Stout would be

the pimp. (10) At least seven witnesses testified that they

14
considered Stout to be dishonest and untruthful, and Stout was also

described by various witnesses as "unstable," "threatening,"

"sick," and a "criminal scum bag." (11) Stout was fully cross-

examined on the payments he received for being a government

informant, and testimony from at least five witnesses, including

Stout himself, showed that Stout was having financial problems, was

always in need of money and appeared to be willing to do almost

anything for money.

Therefore, we conclude that the court permitted defense

counsel the opportunity to expose more than ample facts to the jury

from which it could draw inferences relating to Stout's credibility

and motive to entrap the defendants. In closing arguments, defense

counsel pointed to all the "bad character" evidence and argued that

Stout was manipulative, a skilled liar and an opportunist who

needed money and targeted the defendants to get it. Hamilton's

counsel additionally argued that Stout had a motive to lie on the

stand to curry favor with the prosecutor in the hope that he could

get some help with all his legal problems. We hold that the

defendants were more than able to impeach Stout, and that it is

very unlikely that the admission of the deferred adjudication

records, the pardoned convictions and the pending misdemeanor

charges would have affected the verdict. Although Hamilton and

McMurrey do not challenge the sufficiency of the evidence to

support the jury's rejection of their entrapment defense, we note

that the government's case against entrapment was strong. The

defendants stipulated to the criminal behavior. Stout's testimony

15
regarding the offense was corroborated by the tape recordings of

his meetings and conversations with appellants, as well as by the

written confessions of McMurrey, Hamilton and codefendant York and

by the incriminating items seized from the appellants' apartment.

The jury heard both versions of the events, along with Hamilton and

McMurrey's ample impeachment of Stout and his testimony, and chose

to reject the entrapment defense. We find no abuse of discretion,

and we conclude additionally that any error the district court may

have committed was harmless. See FED. R. CRIM. P. 52; United States

v. Livingston, 816 F.2d 184, 190-91 (5th Cir. 1987).

AFFIRMED.

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