Appeal from the United States District Court for the Central District of California. D.C. No. CR-88-0732-AWT-1. A. Wallace Tashima, District Judge, Presiding.
R. Beezer, Cynthia Holcomb Hall and Stephen S. Trott, Circuit Judges. Opinion by Judge Trott.
Gerald Mark Williams was convicted by a jury of two counts of possession of cocaine with intent to distribute. See 21 U.S.C. § 841(a)(1) (1988). Although Williams himself placed his prior narcotics conviction before the jury during direct examination, he challenges the district court's in limine ruling that evidence of the conviction would be admissible under Fed. R. Evid. 609(a)(1) if offered by the prosecution. He also appeals the court's decision to sentence him under the mandatory minimum ten-year sentence provision of 21 U.S.C. § 841(b)(1)(B), rather than under the United States Sentencing Guidelines. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.
Admissibility of the Prior Conviction
The district court ruled in limine that the prosecution could admit into evidence for impeachment purposes under Rule 609(a)(1) Williams's prior state conviction for possession of marijuana for sale. Faced with this adverse ruling, defense counsel informed the court that she would elicit the fact of the prior conviction during her direct examination of Williams, which she later did. The prosecution did not refer to the prior conviction at trial, so the jury's only knowledge of it came from the brief colloquy between Williams and his attorney.
In Shorter v. United States, 412 F.2d 428, 431 (9th Cir.), cert. denied, 396 U.S. 970, 24 L. Ed. 2d 436, 90 S. Ct. 454 (1969), we confronted a case nearly identical to the one presented here. The defendant in Shorter appealed the district court's in limine ruling that his prior convictions were admissible for impeachment purposes, though defendant's attorney had introduced evidence of the convictions through defendant's own testimony on direct examination. We reasoned:
We need not now decide whether the prosecution's use of prior convictions obtained without counsel for impeachment purposes violates the rationale of Burgett. In the case at bar the prior convictions were not offered by the prosecutor; they were offered by the testimony of appellant himself. While the prosecutor stated that he intended to offer the priors if appellant took the stand and the court indicated it would admit them if offered, the prosecutor never had a chance either to do so or to change his mind. Appellant did not wait to see if the priors would in fact be offered and then object to them; rather, he offered the evidence himself as a matter of trial strategy, probably to soften the anticipated blow in the eyes of the jury. Having adopted this strategy, which appeared to be in his best interest, he cannot now be heard to complain that his own act of offering such evidence violated his constitutional rights. We therefore hold appellant's contention to be without merit.
(footnote omitted) (emphasis in original).*fn1 Relying on Shorter, we observed in a later case that, even if the prior conviction at issue had been inadmissible, there was no reversible error because "it was [defendant's] counsel who, perhaps for some strategic purpose, first introduced the fact of the prior conviction into evidence." United States v. Bryan, 534 F.2d 205, 206 (9th Cir. 1976) (per curiam); see also United States v. Hauff, 395 F.2d 555, 557 (7th Cir.), cert. denied, 393 U.S. 843, 21 L. Ed. 2d 113, 89 S. Ct. 124 (1968) (defendant waived objection to adverse ruling "since it was the defendant's attorney who introduced the prior conviction at the time defendant took the witness stand . . . .").*fn2
The present case is controlled by Shorter and Bryan. Shorter is particularly apposite because in that case, as here, there was a specific ruling in advance of trial that the prior convictions would be admissible if the prosecution chose to use them. In both cases, as here, the defense made a strategic decision to introduce the evidence preemptively, to soften its anticipated effect on the jury.*fn3 Indeed, in one respect the Shorter rule is less harsh as applied here than in Shorter :When the defendant in Shorter made his preemptive strike, he forfeited a constitutional challenge to the admission of his prior convictions, whereas in this case Williams based his objection solely on the Federal Rules of Evidence.
We realize, of course, that the Shorter rule restricts a time-tested technique employed by defense attorneys. As a result of the rule, defense attorneys must choose between softening the impact of the prior conviction on the jury and preserving the Rule 609 objection for appeal. The former route often will be taken because, if the defendant allows the prosecution to expose his criminal history, the effect on his case may be devastating; the jury may infer that the defendant is attempting to hide his prior convictions and will likely focus more on them in assessing his credibility. A holding based on this concern, however, is foreclosed by Shorter and Bryan.
Even if our decision were not compelled by this precedent, the Supreme Court's subsequent opinion in Luce v. United States, 469 U.S. 38, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984), would point us in the same direction. Before Luce, the law of this circuit was that a defendant could refrain from testifying and still preserve for appeal an objection to an adverse in limine evidentiary ruling under Rule 609. See United States v. Cook, 608 F.2d 1175, 1186 (9th Cir. 1979) (en banc), cert. denied, 444 U.S. 1034, 62 L. Ed. 2d 670, 100 S. Ct. 706 (1980). In Luce, the Court held that "to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify." Luce, 469 U.S. at 43. The Court reached this result for the following reasons:
A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context. This is particularly true under Rule 609(a)(1), which directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant. To perform this balancing, the court must know the precise nature of the ...