DePonceau v. United States of America et al

Filing 127

DECISION & ORDER granting in part and denying in part # 110 Motion in Limine as described in this Decision & Orer. Signed by Judge Glenn T. Suddaby on 8/7/13. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________
VICTOR ALTHEUS DePONCEAU,
Plaintiff,
9:09-CV-0605
(GTS/DEP)

v.
D. MURRAY, Watch Commander;
D. WILLIAMS, Grievance Sergeant;
and LeDUCA, Corrections Sergeant,1
Defendants.
_______________________________________
APPEARANCES:

OF COUNSEL:

MENTER, RUDIN & TRIVELPIECE, P.C.
Pro Bono Trial Counsel for Plaintiff
308 Maltbie Street, Suite 200
Syracuse, NY 13204-1498

MITCHELL J. KATZ, ESQ.

HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, NY 12224

CATHY Y. SHEEHAN, ESQ.

GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this prisoner civil rights action filed pro se by Victor
Altheus DePonceau (“Plaintiff”) against the above three correctional employees (“Defendants”),
is Plaintiff’s pre-trial motion in limine, requesting an Order precluding Defendants from
introducing, at trial , evidence, references and arguments relating to any of Plaintiff’s prior
arrests or criminal convictions. (Dkt. No. 110.) For the reasons set forth below, Plaintiff’s
motion is granted in part and denied in part.

1

It appears that this third Defendant’s last name is spelled “Deluca.” (Dkt. No. 48.)

I.

PLAINTIFF’S MOTION
Generally, in his motion, Plaintiff asserts four arguments. (Dkt. No. 110.) First, argues

Plaintiff, his prior arrests may not be inquired about to impeach his credibility; and, in any event,
evidence of those prior arrests is not admissible under Fed. R. Evid. 403, because (a) that
evidence’s probative value is minimal in this action, which alleges excessive force and
retaliation (especially given that Fed. R. Evid. 404[b] precludes the admission of such evidence
to prove the character of a person in order to show action in conformity therewith), (b) its
prejudicial effect is substantial, and (c) its potential to confuse the jury is substantial. (Id.)
Second, argues Plaintiff, upon his counsel’s information and belief, Plaintiff’s only prior
conviction is the one resulting in his present incarceration, which (according to page 14 of
Plaintiff’s deposition transcript) was for what counsel describes as “conspiracy in the second
degree” stemming from “charges related to activities considered to be practicing law without a
license,” which were engaged in by Plaintiff in order to “assist individuals who suffered from
perceived Civil Rights violations.” (Id.)
Third, argues Plaintiff, because (upon his counsel’s information and belief) Plaintiff did
not (in committing that offense) represent that he was an attorney, his conviction was not for a
crime of dishonesty and therefore is not admissible under Fed. R. Evid. 609(a)(2). (Id.)
Fourth and finally, argues Plaintiff, evidence of that conviction is not admissible under
Fed. R. Evid. 609(a)(1)(A), because (a) that evidence’s probative value is minimal (in that
activities giving rise to his conviction are totally unrelated to whether he was assaulted in prison,
and the jury will not need cumulative proof of the fact that Plaintiff is incarcerated), (b) its
prejudicial effect is substantial, and (c) its danger of wasting time is substantial. (Id.)

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II.

ANALYSIS
A.

Plaintiff’s Arrests

In his motion, Plaintiff does not specify the “arrests” to which he is referring. (See
generally Dkt. No. 110.) The only relevant arrest of which the Court is aware (i.e., one not
resulting in a conviction) is Plaintiff’s 2005 arrest for knowingly and unlawfully possessing
ammunition while being a felon, arising from his failure to surrender that ammunition despite
being ordered to do so by Monroe County Court Judge William Bristol in 1997. See United
States v. DePonceau, 05-CR-6124, Warrant for Arrest (W.D.N.Y. filed Sept. 14, 2005)
(indicating arrest on August 31, 2005); United States v. DePonceau, 05-CR-6124, Indictment
(W.D.N.Y. filed Sept. 1, 2005) (charging Plaintiff with one count of violating 18 U.S.C. §
922[g][1] and 924[a][2]); United States v. DePonceau, 05-CR-6124, Affid. in Support of
Criminal Complaint, at ¶ 7 (W.D.N.Y. filed Aug. 31, 2005) (testifying that Plaintiff had been
ordered to surrender his ammunition by Judge William Bristol on September 15, 1997); United
States v. DePonceau, 05-CR-06124, Order of Dismissal (W.D.N.Y. filed June 10, 2008)
(dismissing Indictment without prejudice “due to the prosecution by other authorities resulting in
a significant prison sentence”).
The Court agrees with Plaintiff that the mere existence of an arrest–without more–is not
admissible to impeach the credibility of a witness. Michelson v. United States, 335 U.S. 469,
482 (1948) (“Arrest without more does not, in law any more than in reason, impeach the
integrity or impair the credibility of a witness. It happens to the innocent as well as the guilty.
Only a conviction, therefore, may be inquired about to undermine the trustworthiness of a
witness.”). However, of course, arrests may “be inquired into [on cross-examination] if they are

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probative of the character [of a witness] for truthfulness or untruthfulness.” Fed. R. Evid.
608(b); see, e.g., Picciano v. McLoughlin, 07-CV-0781, 2010 WL 4366999, at *2 (N.D.N.Y.
Oct. 28, 2010) (Suddaby, J.) (“[I]n the event that Plaintiff testifies at trial that he suffered a ‘fear’
of police officers, and/or lost his desire to become a police officer, as a result of the incident of
August 4, 2004, which is the subject of this litigation, the Court will permit Defendant to ask
Plaintiff whether he has been arrested on more than one occasion since August 4, 2004.”).2
As a result, defense counsel is precluded from inquiring into Plaintiff’s above-described
arrest on cross-examination, unless Plaintiff first provides specific testimony that renders that
arrest probative of his character for truthfulness or untruthfulness (e.g., testimony that he was
never arrested for anything other than the offenses giving rise to his most-recent conviction,
testimony that he has never possessed ammunition, testimony that he has never disregarded a
judge’s order, etc.). To the extent that Plaintiff experienced any other arrests that did not result
in a conviction, this Decision and Order renders no decision with regard to those arrests.
B.

Plaintiff’s Convictions

As an initial matter, the Court notes that there are three factual issues with Plaintiff’s
counsel’s argument that, upon information and belief, Plaintiff’s only prior conviction is the one
resulting in his present incarceration, which (according to page 14 of Plaintiff’s deposition
transcript) was for what counsel describes as “conspiracy in the second degree” stemming from
“charges related to activities considered to be practicing law without a license,” which were

2

See, e.g., Ramos v. Cnty. of Suffolk, 707 F. Supp.2d 421, 424 (E.D.N.Y. 2010)
(permitting defendant to question plaintiff about whether she had ever been arrested prior to and
after the incident that was the subject of the litigation because the fact of the arrest “affected the
plaintiff's claim for emotional distress damages,” but precluding defendant from “go[ing] into what
the reason for the arrest is”).
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engaged in by Plaintiff in order to “assist individuals who suffered from perceived Civil Rights
violations.”
First, in fact, Plaintiff was also convicted on August 7, 1997, in Monroe County Court,
for driving while intoxicated (a Class E Felony), resulting in a sentence of five years probation.
See United States v. DePonceau, 05-CR-6124, Affid. in Support of Criminal Complaint, at ¶ 6
(W.D.N.Y. filed Aug. 31, 2005) (testifying that Plaintiff was “convicted of a Class E Felony,
Driving While Intoxicated, in Monroe County Court on August 7, 1997,” and “was sentenced to
five years probation”); United States v. DePonceau, 05-CR-6124, Indictment (W.D.N.Y. filed
Sept. 1, 2005) (charging, inter alia, that Plaintiff was “convicted on or about the 7th day of
August 1997 in County Court, Monroe County, New York, of a crime punishable by
imprisonment for a term exceeding one year”); New York v. DePonceau, 715 N.Y.S.2d 197
(N.Y. App. Div., 4th Dept. 2000). However, because the conviction is more than ten years old,
the admissibility of the conviction depends on whether two the requirements set Fed. R. Evid.
609(b) have been met, which they do not appear to have been.3
Second, because page 14 of Plaintiff’s deposition transcript does not appear to have been
filed on the docket, the Court cannot assess the accuracy of Plaintiff’s counsel’s characterization
of Plaintiff’s deposition testimony. (See generally Docket Sheet.) However, because
Defendants have not taken issue with that characterization in a response (see generally Docket
Sheet), the Court will assume the characterization to be accurate, for purposes of this Decision
and Order.

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Defendants did not argue, in a response, that the probative value of this evidence
outweighs its prejudicial effect, they do not appear to have given Plaintiff reasonable written notice
of their intent to use the evidence. (See generally Docket Sheet.)
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Third, contrary to any suggestion that the conviction giving rise to his current
incarceration was for conspiracy to practice law, that conviction was actually for conspiracy to
murder two witnesses (specifically, two counts of conspiracy in the second degree, and one
count of conspiracy in the fifth degree) on behalf of Frank J. Povoski, Jr. (a prisoner at the
Monroe County Jail, who was awaiting trial for burning four police cars). See, e.g., New York v.
Deponceau, 946 N.Y.S.2d 331 (N.Y. App. Div., 4th Dept. 2000); New York v. DePonceau, No.
2005-0962, Decision and Order, at 1 (N.Y. Sup. Ct., Monroe Cnty., filed Dec. 13, 2007) (Ark,
J.S.C.). Granted, Plaintiff is correct to the extent he argues that the conviction is not admissible
under Fed. R. Evid. 609(a)(2), because establishing the elements of the crime of conspiracy to
murder does not require proving–or Plaintiff's admitting–a dishonest act or false statement. See
N.Y. Penal Law §§ 105.15, 105.05.
However, the conviction is admissible under Fed. R. Evid. 609(a)(1)(A), and Fed. R.
Evid. 403, because (a) the conviction's probative value is substantial (b) its prejudicial effect is
minimal, and (c) its danger of wasting time is minimal. The Court notes that the events giving
rise to the conviction appear to involve, inter alia, one or more dishonest acts or false
statements–specifically, a false representation by Plaintiff (to Frank J. Povoski, Jr., Povoski’s
girlfriend, and/or law-enforcement authorities) that Plaintiff was an “advocate” (i.e., legal
counselor or practitioner), and that his dishonest suggestion that his organization was the state
chapter of the national organization “JAIL4Judges.” See, e.g., DePonceau v. United States, 08CV-0001, Habeas Corpus Petition, at 2 (N.D. Oh. filed Jan. 2, 2008) (alleging that he discovered
police misconduct against Frank J. Povoski, Jr., while serving as “a Civil Rights Advocate from
New York Jail (4) Judges”); DePonceau v. United States, 08-CV-0001, Ex. 3 to Habeas Corpus

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Petition (N.D. Oh. filed Jan. 2, 2008) (attaching one-page photo of Plaintiff identifying himself
as “advocate of New York Jail (4) Judges”); DePonceau v. United States, 08-CV-0001, Ex. 41 to
Habeas Corpus Petition, at 9, 17 (N.D. Oh. filed Jan. 2, 2008) (attaching Complaint by Plaintiff
stating that he is an “advocate” and “Regional Director” associated with “New York Jail (4)
Judges,” and requesting that clients give him their “Power of Attorney” so that he can “make
sure the 14th amendment (due process of law) is carried out,” and “tak[e] actions that are in their
best interest”). (Accord, Dkt. No. 1, Attach. 4, at 74; Dkt. No. 1, Attach. 6, at 7.)
As a result, defense counsel is permitted to adduce evidence of the above-described
criminal conviction for conspiracy in order to attack Plaintiff’s character for truthfulness.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion in limine is (Dkt. No. 110) GRANTED in part and
DENIED in part, as described above in this Decision and Order.
Dated: August 7, 2013
Syracuse, New York

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