Jordan v. Ensco Offshore Company

Filing 118

ORDER AND REASONS granting 74 Motion in Limine to Exclude Evidence of Arson Conviction and Arrest for Felon in Possession of Firearm. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KEVIN JORDAN
Plaintiff

CIVIL ACTION

VERSUS

NO. 15-1226

ENSCO OFFSHORE COMPANY
Defendant

SECTION: “E” (1)

ORDER AND REASONS
Before the Court is Plaintiff Kevin Jordan’s motion in limine to exclude (1) evidence
of Plaintiff’s 2002 arson conviction, and (2) evidence of Plaintiff’s subsequent arrest for
being a felon in possession of a firearm. 1 The motion is opposed. 2 For the reasons that
follow, the motion is GRANTED.
Plaintiff was arrested for felony arson in Wayne County, Mississippi, in 2002. 3
Plaintiff pleaded guilty and served two years in Mississippi state prison. 4 Plaintiff was
released in 2004 and placed on probation for a period of six months. 5 Years later in 2012,
Plaintiff was arrested for being a felon in possession of a firearm. 6 The charge was later
dismissed. 7 Plaintiff seeks to exclude evidence of both his 2002 arson conviction and his
2012 arrest for being a felon in possession of a firearm. 8 Plaintiff argues that, with respect
to his arson conviction, the conviction is more than 10 years old and its probative value is
substantially outweighed by its prejudicial effect. 9 With respect to his arrest for being a
felon in possession of a firearm, Plaintiff contends an arrest alone, without a conviction,

R. Doc. 74.
R. Doc. 83.
3 R. Doc. 74-1 at 1; R. Doc. 74-2 at 3.
4 R. Doc. 74-1 at 1; R. Doc. 74-2 at 3.
5 R. Doc. 74-1 at 1; R. Doc. 74-2 at 3.
6 R. Doc. 74-1 at 1; R. Doc. 74-2 at 2.
7 R. Doc. 74-1 at 1; R. Doc. 74-2 at 2.
8 See generally R. Doc. 74.
9 R. Doc. 74-1 at 1–2.
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has no probative value whatsoever. 10 Defendant, in response, contends that Plaintiff’s
arson conviction is relevant to “the issues of future lost wages and employability.” 11 The
Defendant, however, does not respond to Plaintiff’s motion insofar as it addresses his
2012 arrest for being a felon in possession of a firearm. 12
I.

2002 ARSON CONVICTION
Federal Rule of Evidence 609(b) provides:
[I]f more than 10 years have passed since the witness’s conviction or release
from confinement for it, whichever is later[,] [e]vidence of the conviction is
admissible only if: (1) its probative value, supported by specific facts and
circumstances, substantially outweighs its prejudicial effect; and (2) the
proponent gives an adverse party reasonable written notice of the intent to
use it so that the party has a fair opportunity to contest its use.

The Fifth Circuit has interpreted Rule 609(b) to mean that “the probative value of a
conviction more than 10 years old is by definition outweighed by its prejudicial effect.” 13
For convictions more than 10 years old, “[t]he general rule is inadmissibility.” 14
“Convictions should be admitted under Rule 609(b) ‘very rarely and only in exceptional
circumstances.’” 15 Plaintiff pleaded guilty to felony arson in 2002, was released from
prison in 2004, and completed a 6-month term of probation at some point in 2005. 16
More than 10 years have passed since Plaintiff’s conviction, his release from confinement,
and the end of his term of probation. Thus, under Rule 609(b), the conviction is
inadmissible unless “its probative value, supported by specific facts and circumstances,
substantially outweighs its prejudicial effect.” 17
R. Doc. 74-1 at 3.
R. Doc. 83 at 1–2.
12 See R. Doc. 83.
13 United States v. Hamilton, 48 F.3d 149, 154 (5th Cir. 1995).
14 Id. (citing United States v. Estes, 994 F.2d 147, 149 (5th Cir. 1993)).
15 McIntyre v. Bud’s Boat Rentals, LLC, No. Civ.A. 02-1623, 2003 WL 22174236, at *3 (E.D. La. Sept. 9,
2003) (quoting Zinman v. Black & Decker (U.S.), Inc., 983 F.2d 431, 434 (2d Cir. 1993) (quoting
congressional report)).
16 See R. Doc. 74-1 at 1; R. Doc. 74-2 at 3.
17 See FED. R. EVID. 609(b).
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The Defendant argues that Plaintiff’s arson conviction is “relevant to the issues of
future lost wages and employability.” 18 According to the Defendant, “despite the fact that
more than 10 years have passed since the Plaintiff’s conviction for arson, such evidence is
admissible because Plaintiff is making a claim regarding his future employability and for
future lost wages.” 19 Defendant implies that the conviction is relevant because it may limit
the future employment options available to the Plaintiff. Defendant’s argument fails for a
number of reasons. First, Defendant fails to even address whether the probative value of
Plaintiff’s arson conviction outweighs the danger for unfair prejudice, irrespective of
whether the conviction may be “relevant” to an issue in this case. Second, even if
Defendant had addressed whether the probative value of Plaintiff’s conviction outweighed
the danger of unfair prejudice, the Court disagrees with such an argument. As noted
above, the Fifth Circuit has held that “[c]onvictions should be admitted under Rule 609(b)
‘very rarely and only in exceptional circumstances.’” 20 Even if Plaintiff’s conviction may
be relevant to his claim for “future lost wages,” the probative value of the conviction does
not outweigh the danger of unfair prejudice. Evidence of Plaintiff’s 2002 arson conviction
is excluded from trial.
II.

2012 ARREST FOR BEING A FELON IN POSSESSION OF A FIREARM
Plaintiff also seeks to exclude evidence of his 2012 arrest for being a felon in

possession of a firearm. Defendant does not oppose the exclusion of this evidence. 21
Moreover, the Court notes that Plaintiff was never convicted of the crime of being a felon
in possession, having only been arrested and then released. “The mere fact that a man has

R. Doc. 83 at 1.
R. Doc. 83 at 1.
20 McIntyre v. Bud’s Boat Rentals, LLC, No. Civ.A. 02-1623, 2003 WL 22174236, at *3 (E.D. La. Sept. 9,
2003) (quoting Zinman v. Black & Decker (U.S.), Inc., 983 F.2d 431, 434 (2d Cir. 1993) (quoting
congressional report)).
21 See generally R. Doc. 83.
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been arrested has very little, if any, probative value . . . . When formal charges are not filed
against the arrested person and he is released without trial, whatever probative force the
arrest may have had is normally dissipated.” 22 The circumstances behind Plaintiff’s 2012
arrest and subsequent release are unknown, though it is clear that the arrest did not lead
to a conviction. Plaintiff’s arrest in and of itself has no probative value. Evidence of
Plaintiff’s 2012 arrest for being a felon in possession of a firearm is excluded from trial.
IT IS SO ORDERED.
New Orleans, Louisiana, this 16th day of May, 2016.

____________ ________ __ ______
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

McIntyre, 2003 WL 22174236, at *4 (internal quotation marks omitted) (quoting Schware v. Board of
Bar Examiners of the State of New Mexico, 353 U.S. 232, 241 (1957)).
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