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US Court of Appeals
FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
                                                     No. 99-10133
Plaintiff-Appellee,
                                                     D.C. No.
v.
                                                     CR-98-00028-PMP
SANDRO JIMENEZ,
                                                     OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Nevada
Phillip M. Pro, District Judge, Presiding

Argued and Submitted
January 12, 2000--San Francisco, California

Filed June 14, 2000

Before: Ellsworth A. Van Graafeiland,1 Arthur L. Alarcon,
and Barry G. Silverman, Circuit Judges.

Opinion by Judge Silverman

_________________________________________________________________

1 The Honorable Ellsworth A. Van Graafeiland, Senior United States
Circuit Judge for the Second Circuit, sitting by designation.


SUMMARY

The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 2000 by West Group.
_________________________________________________________________

Criminal Law and Procedure/Evidence

The court of appeals reversed a judgment of conviction.
The court held that a district court's attempt to sanitize evi-
dence of a defendant's prior felony convictions which inad-
_________________________________________________________________

                               6215


vertently exacerbates the danger of unfair prejudice is
reversible error.

Appellant Sandro Jimenez was charged with being a felon
in possession of a firearm.

A police officer responding to a burglary alarm saw Jime-
nez and Alberto Solis walking near where the alarm had origi-
nated. The officer asked the men to stop and talk to him. Solis
stopped, Jimenez continued on and walked behind a truck.

The officer claimed that when Jimenez went behind the
truck, his arms and hands were obscured from the officer's
view and the officer heard a loud metallic sound of something
hitting the ground. When he investigated, he found a handgun.
When Jimenez and Solis were taken into custody, they were
read their Miranda rights and Jimenez confessed that the
handgun belonged to him.

Jimenez testified that he did not realize initially that it was
a police officer who called out to him and Solis. When he did,
he was near the truck, and his foot hit something which made
a metallic sound. Solis testified that after he and Jimenez were
taken into custody, they both denied that the gun belonged to
them; that he had not seen Jimenez with a gun that night;
Jimenez had never told him that he had a gun; and that he did
not see Jimenez drop a gun that night.

The government sought to impeach Jimenez with his prior
felony convictions for burglary and assault with a deadly
weapon. The district court had to determine whether the pro-
bative value of the impeachment outweighed the danger of
unfair prejudice. The court allowed the government to intro-
duce the prior convictions, but in an attempt to minimize the
prejudice, ordered that the assault with a deadly weapon con-
viction be referred to as a "felony involving a firearm."

                               6216


The judge instructed the jury that they were to consider
Jimenez's previous felony convictions only as they might bear
on his credibility as a witness. Jimenez was convicted.

Jimenez appealed, arguing that the district court erred when
it failed to make a record of the factors that contributed to its
decision to admit the evidence of the prior felonies, and by
incorrectly weighing the probative value of the evidence
against its prejudicial effect under Rule 609(a)(1).

[1] The record should reveal, at a minimum, that a trial
judge was aware of the requirements of Rule 609(a)(1). [2] In
Jimenez's case, the record, although less than perfect, com-
pelled an inference that the district judge was aware of the
requirements of Rule 609(a)(1). The judge recognized the
possible prejudicial effect of the evidence and attempted,
albeit unsuccessfully, to ameliorate that prejudice.

[3] In altering the nature of Jimenez's previous assault con-
viction to include the reference to the firearm, the judge
increased rather than decreased the danger of unfair prejudice.
The limiting instruction later offered could not eliminate this
danger.

[4] The central issue, whether Jimenez had possessed a gun
the night he was arrested, came down to a question of witness
credibility. When presented with the two possible but con-
flicting stories, the jury may well have given weight to the
fact that Jimenez had been convicted of a firearm felony
before. The error was not harmless.

[5] Reversal was required.

_________________________________________________________________

COUNSEL

John C. Lambrose, Assistant Federal Public Defender, Las
Vegas, Nevada, for the defendant-appellant.

                               6217


Robert A. Bork, Assistant United States Attorney, Las Vegas,
Nevada, for the plaintiff-appellee.

_________________________________________________________________

OPINION

SILVERMAN, Circuit Judge:

Defendant Sandro Jimenez was charged with possession of
a firearm by a felon in violation of 18 U.S.C. SS 922(g)(1) &
924(a)(2). At trial, he testified that he neither owned nor pos-
sessed the firearm in question. The government sought to
impeach Jimenez with his prior convictions for assault with a
deadly weapon and burglary. Recognizing the possible preju-
dice of such impeachment, the district court attempted to
"sanitize" the assault prior by directing the prosecution to
refer to it only as a "felony involving a firearm." Instead of
mitigating the prejudice, this ruling inadvertently exacerbated
it by gratuitously informing the jury that the "deadly weapon"
involved in the defendant's prior conviction was, indeed, a
firearm. Since the main issue in the present case was whether
or not the defendant possessed a firearm, the district court's
ruling was reversible error.

I. Facts

In the early morning hours of November 21, 1997, Las
Vegas Metropolitan Police Officer David Smith was dis-
patched to an apartment complex in response to a report of a
burglary alarm. Upon arriving at the complex, Officer Smith
observed two men, Alberto Solis and Defendant Sandro Jime-
nez, walking near the apartment where Smith believed the
burglary alarm had originated. Smith asked the two men to
stop and talk to him; Solis complied, but Jimenez continued
on, and walked behind a parked pickup truck.

It is at this point that two very different versions of the facts
emerge. The jury's verdict would hinge on which version it

                               6218


believed, and therefore, on the credibility of the witnesses.
Officer Smith testified for the government that when Jimenez
walked behind the truck, Jimenez's arms "from probably the
elbow, maybe lower down" were obscured from Smith's
view. While Jimenez's hands were concealed behind the
truck, Smith heard "a loud metallic sound hit the ground"
which Smith believed was the sound of a gun being dropped
on the asphalt parking surface. Smith drew his weapon and
ordered Jimenez and Solis to raise their hands. Smith then
ordered Jimenez out from behind the truck, and had Jimenez
and Solis lay prone on the ground. Officer Smith then called
for backup.

When Smith's backup arrived, the officers took Jimenez
and Solis into custody. Officer Smith then walked behind the
pickup truck to where Jimenez had been standing, and discov-
ered a black semiautomatic handgun. The handgun was never
checked for fingerprints.

After Jimenez was taken into custody, Officer Warren Gray
read him his Miranda rights. Officer Gray testified at trial that
after he read Jimenez his rights, Jimenez admitted that the gun
belonged to him, and that he had thrown it under the truck
because he had become scared when he saw Officer Smith.

The defense witnesses testified quite differently. First, Solis
testified that after he and Jimenez were taken into custody,
both of them had denied that the gun belonged to them. Solis
also testified that he had not seen Jimenez with a gun that
night, that Jimenez never told him he had a gun, and that he
had not seen Jimenez drop a gun that night.

Defendant Jimenez testified in his own behalf that when
Officer Smith first called out to him as he and Solis were
walking in the apartment complex, Jimenez had not realized
that Smith was a police officer, so he had continued walking
toward the pickup truck. Jimenez testified that he eventually

                               6219


realized Smith was a police officer when Smith asked him to
stop again. At this point, Jimenez testified:

      Well, [Officer Smith] asked for me to stop again.
      When I reached behind the white truck my foot hit
      something or kicked something which made a metal-
      lic sound and he asked me to raise my hands and for
      Alberto Solis to raise his hands and step out where
      he could see us.

Jimenez also denied ever telling Officer Gray that the gun
belonged to him.

Anticipating that Jimenez might choose to testify, the gov-
ernment sought leave of the court to impeach him with his
prior felony convictions for burglary and assault with a deadly
weapon. Although the parties previously had entered into a
stipulation that Jimenez was a felon, satisfying that element
of the felon in possession of a firearm statute, the government
wanted to introduce the specific convictions by name in order
to impeach Jimenez's testimony under Federal Rule of Evi-
dence 609(a)(1). The issue was whether the probative value
of the impeachment outweighed the danger of unfair preju-
dice. The district judge agreed to allow the government to
introduce Jimenez's prior felonies, but ordered that the assault
with a deadly weapon conviction be referred to as a "felony
involving a firearm." Although the district judge obviously
was attempting to minimize any prejudice to the defendant, he
made no specific reference to the five factor inquiry set forth
in United States v. Cook, 608 F.2d 1175, 1185 n.8 (9th Cir.
1979) (en banc). The first two questions the government
asked Jimenez on cross-examination were whether he had
been convicted of the two felonies, including the "felony
involving a firearm." The district judge gave a limiting
instruction to the jury that they were to consider Jimenez's
previous felony convictions only as they might bear on his
believability as a witness, and the government did not men-
tion the convictions again.

                               6220


II. Analysis

A. Rule 609(a)(1)

Jimenez contends that the district court erred by failing to
make an adequate record of the factors that contributed to the
court's decision to admit evidence under Rule 609(a)(1), and
by incorrectly weighing the probative value of the evidence
against its prejudicial effect. The district court's evidentiary
rulings under Rule 609(a) are reviewed for an abuse of discre-
tion. See United States v. Alexander, 48 F.3d 1477, 1488 (9th
Cir. 1995); United States v. Browne, 829 F.2d 760, 762 (9th
Cir. 1987).

[1] When impeaching the testimony of a criminal defen-
dant, Rule 609(a)(1) provides in pertinent part,"evidence that
an accused has been convicted of [a crime punishable by
death or imprisonment in excess of one year] shall be admit-
ted if the court determines that the probative value of admit-
ting this evidence outweighs its prejudicial effect to the
accused." This court has outlined five factors that should
guide the district court's decision whether to admit evidence
under Rule 609(a)(1):

      1. the impeachment value of the prior crime

      2. the point in time of the conviction and the wit-
      ness' subsequent history

      3. the similarity between the past crime and the
      charged crime

      4. the importance of the defendant's testimony

      5. the centrality of the credibility issue

See United States v. Cook, 608 F.2d 1175, 1185 n.8 (9th Cir.
1979) (en banc); see also United States v. Wallace, 848 F.2d

                               6221


1464, 1473 n.12 (9th Cir. 1988). Although the trial judge is
not required to state his or her analysis of each of the five fac-
tors with special precision, "the record should reveal, at a
minimum, that the trial judge `was aware of the requirements
of Rule 609(a)(1).' " Wallace, 848 F.2d at 1473 (quoting
United States v. Givens, 767 F.2d 574, 579-80 (9th Cir.
1985)).

The correct procedure is for a district judge to ensure that
the record reflects a consideration of the five Cook factors, as
well as a weighing of the probative value of the conviction
being offered against its prejudicial effect. Likewise, as pro-
ponents of the impeachment evidence, prosecutors should be
vigilant about seeing to it that the record supports the judge's
ruling.

[2] We have had previous occasion to consider situations in
which the record on the admissibility of the prior conviction
was less than optimum.2 In this case, although the record is
less than perfect, it nonetheless compels an inference that the
district judge was, "at a minimum . . . aware of the require-
ments of Rule 609(a)(1)" as required by Wallace. This is
demonstrated by the fact that the judge recognized the possi-
ble prejudicial effect of the assault with a deadly weapon con-
viction, and attempted, albeit unsuccessfully, to ameliorate
that prejudice. The record shows that the judge recognized the
_________________________________________________________________
2 See Wallace, 848 F.2d 1464 (9th Cir. 1988) (judge abused his discre-
tion when he only expressly considered two of the five factors, and as to
one of the factors he did discuss, the judge incorrectly believed that the
similarity of the prior conviction and the present charge weighed in favor
of, rather than against, admissibility); Givens , 767 F.2d 574 (9th Cir.
1985) (judge did not abuse discretion when he stated that he had consid-
ered the five Cook factors without discussing them with particularity and
weighed the prejudice of allowing evidence of the prior conviction against
the importance of the credibility of the defendant's testimony); United
States v. Hendershot, 614 F.2d 648 (9th Cir. 1980) (abuse of discretion
when judge heard arguments from both parties, including an incorrect
interpretation of Rule 609(a)(1) and simply ruled the prior conviction
admissible without indicating what standard it employed).

                               6222


centrality of the credibility issue and the defendant's testi-
mony, but also attempted to protect Jimenez to the extent that
his assault conviction would unfairly prejudice the jury.
Under these particular circumstances, we believe the district
judge demonstrated that he was, "at a minimum . .. aware of
the requirements of Rule 609(a)(1)."3

[3] The real problem in this case is that in the district
judge's well-meaning attempt to mitigate the prejudice to the
defendant, he inadvertently made it worse. The district judge
took Jimenez's assault with a deadly weapon conviction and
ordered it referred to as a "felony involving a firearm" -- this
in a trial where the only issue in dispute was whether the
defendant had, in fact, possessed a firearm. By altering the
nature of Jimenez's previous assault conviction to include the
reference to the firearm, the judge increased, rather than
decreased, the risk that the jury would "draw a conclusion that
is impermissible in law: because he did it before he must have
done it again." Bagley, 772 F.2d at 488. The limiting instruc-
tion the judge later offered could not fully eliminate this dan-
ger.

B. Harmless Error

[4] An error in admitting a prior conviction may be consid-
ered harmless if the government can show that it is more
likely than not that there is "a `fair assurance' that the error
did not substantially sway the verdict." United States v.
Alviso, 152 F.3d 1195, 1199 (9th Cir. 1998). The government
can provide no such "fair assurance" in this case. The central
issue in this case, whether Jimenez had possessed a gun the
night he was arrested, came down to a question of witness
_________________________________________________________________
3 The record is less clear that the district judge applied the Cook factors
to the burglary prior, the use of which was allowed with barely a mention
by the court or counsel. On the other hand, both priors were considered
by the district judge at the same time. In any case, we need not belabor
this point because we are reversing on other grounds.

                               6223


credibility. The defendant offered a not implausible explana-
tion of how the gun came to be found near the spot in the
apartment parking lot where he was standing. When presented
with the two plausible but conflicting stories, the jury may
well have given weight to the fact that Jimenez had been con-
victed of a firearm felony before, and therefore, was more
likely to have had a gun when Officer Smith confronted him
at the apartment complex. As such, the government cannot
meet its burden of demonstrating that the error was harmless
in this case.

III. Conclusion

[5] The district court should have engaged in a more exten-
sive Rule 609(a)(1) analysis on the record, noting and discuss-
ing the five Cook factors. Taken as a whole, however, the
district judge's actions reveal a sufficient awareness of the
requirements of Rule 609(a)(1) under Wallace. However, the
district judge's attempt to ameliorate the prejudice of the
assault with a deadly weapon conviction had the reverse
effect. Because the error was not harmless, the defendant's
conviction is REVERSED, and the case remanded to the dis-
trict court for a new trial.

                               6224



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