Banks et al v. Berge et al
OPINION AND ORDER: Defendants' motions 78 and 81 are GRANTED in part and DENIED in part. Evidence of defendant Berge's conviction for first-degree official misconduct, ORS 162.415(1), and of the reasons for his resignation from Portland Police Bureau is not admissible to attack his character for truthfulness under Rule 609(a)(2). The Court defers ruling on the admissibility of the conviction and reasons for the resignation for all other purposes. Signed on 12/18/2019 by Judge Ann L. Aiken. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CLAUDIUS BANKS and
Case No. 3:16-cv-02129-M
OPINION AND ORDER
CHRISTIAN BERGE and
CITY OF PORTLAND,
AIKEN, District Judge:
Plaintiffs Claudius and Daynelle Banks assert civil rights claims against
Christian Berge, a former Portland police officer, and tort claims against the City of
Portland arising out of a traffic stop. Defendants have moved in limine for an order
excluding any evidence that Berge pleaded guilty to and was convicted of first-degree
official misconduct in violation of ORS 162.415(1) in December 2017. Because of the
close relationship between Berge's conviction and resignation, defendants also seek
an order excluding evidence of the reasons for Berge's resignation. For the reasons
below, Defendants' motions (docs. 78, 81) are granted in part and denied in part.
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The Stop and Evidence Offered To-Date
On March 21, 2015, at around 2:00 am, the Banks were stopped by Berge while
they drove down NE Ainsworth Street in Portland on their way to Popeyes. They
pulled over into the Popeyes parking lot. Less than ten minutes later, Berge left the
scene without arresting plaintiffs or citing them for a traffic violation. Plaintiffs' key
had broken off in the ignition, which rendered the car inoperable, so plaintiffs took a
taxi home. During the night, the car was towed.
According to plaintiffs, Claudius Banks had returned from a long day of work
at FedEx when they decided to drive to Popeyes. While driving, Claudius did not
violate any traffic laws. Neither plaintiff was intoxicated at the time, nor had they
consumed alcohol for at least twelve hours before the stop. Plaintiffs allege that
Berge did not ask if they had been drinking or otherwise state that he had observed
them violating traffic laws, but instead exited his vehicle and commanded plaintiffs
to "Get your black ass out of the car." They also allege that Berge searched plaintiffs'
car, including inside the glove box. Finally, plaintiffs allege that Berge jerked and
twisted the key at least three times until it broke off in the ignition.
According to Berge, he was driving behind the Banks' car when he observed it
drift into the oncoming lane of traffic twice. He believed the driver had committed
two traffic violations: (1) failure to drive within a lane and (2) unlawful or unsignaled
lane change. He could see that the car had two occupants but could not tell their race
or gender. When he approached the driver's side window, both plaintiffs appeared
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visibly intoxicated. Berge did not perform field sobriety tests on either plaintiff or
otherwise perform a DUII investigation.
Berge denies using racially charged
language to order plaintiffs out of the car. He also denies searching the car, but
admits that he briefly entered the car to roll up the windows and secure the car.
Berge also asserts he accidentally broke the key while securing the car.
The parties have not provided accounts from any other eyewitnesses and Berge
did not prepare a police report in connection with the stop. Instead, the conflicting
testimony presents a classic credibility contest, where one of the critical issues in the
upcoming trial will be the credibility of the witnesses, which is for the jury to
In December 2017, Berge was charged with first-degree official misconduct,
ORS 162.415(1). ORS 162.415(1) provides, in part, that "[a] public servant commits
the crime of official misconduct in the first degree if' the public servant "knowingly
performs an act constituting an unauthorized exercise in official duties" with "intent
to obtain a benefit or to harm another[.]"
ORS 162.415(l)(a). Berge was charged
on or between August 12, 2015 and May 3, 2017, ... being a public
servant, to-wit: a police officer employed by the Portland Police Bureau,
[who] did unlawfully and knowingly perform an act, which act
constituted an unauthorized exercise of his official duties, with intent to
obtain a benefit[.]
Coit Deel. Ex. 1, Doc. 79-1. On December 14, 2017, Berge pleaded guilty and in his
plea petition, admitted that
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between August 12, 2015, and May 3, 2017, [he] engaged in conduct on
duty as a police officer which was an unauthorized exercise of [his]
official duty, with an intent to obtain a benefit.
Coit Deel. Ex. 2 at 2, Doc. 79-2 at 2. On the same day, Berge was sentenced to 18
months of bench probation and, as a condition of probation, was ordered to resign
from the Portland Police Bureau, which he did later that day. Coit Deel. Ex 3 at 1,
Doc. 79-3 at 1.
Defendants the City and Berge move the Court to exclude evidence of Berge's
first-degree official misconduct conviction and to exclude evidence of the reasons for
his resignation from the Police Bureau.
Defendants argue that Berge's conviction is not admissible for impeachment
purposes under Federal Rule of Evidence 609(a)(2), which permits a party to "attack □
a witness's character for truthfulness by evidence of a criminal conviction" if "the
court can readily determine that establishing the elements of the crime [of conviction]
required proving - or the witness's admitting - a dishonest act or false statement."
Fed. R. Evid. 609(a). Defendants contend that first-degree official misconduct does
not, by definition, involve an element of dishonesty or false statement. Defendants
also contend that the conviction is not relevant for any purpose other than to attack
Berge's character for truthfulness and that, even if it was, the conviction would not
be admissible under Rule 403. Finally, defendants urge the Court to exclude evidence
of the reasons for Berge's resignation for the same reasons, arguing that the
resignation is inextricably intertwined with Berge's conviction.
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Plaintiffs respond that Berge's conviction is admissible under Rule 609(a)(2)
because first-degree official misconduct is, by definition, a crime of dishonesty. They
also assert that it would be premature for the Court to rule on the conviction's
admissibility for other purposes at this time. However, at oral argument, plaintiffs
did concede that, without the context of the testimony at trial, they did not have
another purpose for which to admit evidence of the conviction.
conceded that, if the court rules that the conviction is not admissible under Rule 609,
then evidence of the reasons behind Berge's resignation would also not be admissible.
Generally, evidence of a "a crime, wrong, or other act is not admissible to prove
a person's character in order to show that on a particular occasion, the person acted
in accordance with the character." Fed. R. Evid. 404(b)(l). Evidence of a person's
character for truthfulness or untruthfulness is, however, admissible to attack a
Fed. R. Evid. 608(a). And the court may allow a party to
impeach a witness by eliciting testimony on cross-examination about specific
instances of that witness's conduct or another witness's conduct if the conduct is
probative of the relevant witness's character for truthfulness or untruthfulness. Fed.
R. Evid. 608(b). But if the witness denies or cannot recall the conduct, the party
cannot use extrinsic evidence to prove the conduct. Id.
One exception to the general rule that extrinsic evidence of conduct cannot be
used to attack a witness's character for truthfulness is found in Rule 609. Rule 609
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permits impeachment by evidence of a criminal conviction. As relevant here, Rule
[F]or any crime regardless of the punishment, [evidence of a conviction]
must be admitted [to prove a witness's character for untruthfulness] if
the court can readily determine that establishing the elements of the
crime required proving-or the witness's admitting-a dishonest act or
Fed. R. Evid. 609(a)(2). If a conviction falls within that provision, the court does not
have discretion to exclude the evidence. United States v. Lester, 749 F.2d 1288, 1300
(9th Cir. 1984).
In United States v. Brackeen, 969 F.2d 827 (9th Cir. 1992) (en bane) (per
curiam), the Ninth Circuit held that Rule 609(a)(2) applies only to crimes that
"factually or by definition involve some element of misrepresentation or deceit." 969
F.2d at 831. Thus, a witness's prior conviction can be admitted under Rule 609(a)(2)
in two ways: (1) if the definition of the offense demonstrates that the offense always
involves misrepresentation or deceit, in which case the offense is considered a per se
crime of dishonesty; or (2) if the crime "was actually committed by fraudulent or
deceitful means." United States v. Glenn, 667 F.2d 1269, 1273 (9th Cir. 1982). In the
latter case, the proponent of the conviction "has the burden of producing facts
demonstrating that the particular conviction involved fraud or deceit." Id.
The parties' arguments raise three issues, which the Court will address in
(1) whether first-degree official misconduct, by definition, involves a false
statement or deceit; (2) whether Berge's conviction for first-degree official misconduct
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was actually committed by fraudulent or deceitful means; and (3) whether Berge's
conviction is admissible for some other purpose.
Does First-Degree Official Misconduct Under ORS 162.415 Involve an Element
of Misrepresentation or Deceit?
The first issue before the Court is whether first-degree official misconduct
under ORS 162.415(1) is "by definition" a crime of "dishonesty" under Rule 609,
regardless of the means by which it is perpetrated. As mentioned, such a crime must
involve some element of misrepresentation or deceit.
The Advisory Committee's Notes to the 2006 Amendments to Rule 609 provides
In the notes, the Advisory Committee explains that Congress
intended to limit subdivision (a)(2) to convictions for "crimes such as perjury, false
statement, criminal fraud, embezzlement, or false pretense, or any other offense in
the nature of crimen falsi, the commission of which involves some bearing on the
witness's propensity to testify truthfully." Fed. R. Evid. 609 Advisory Committee's
Notes (quotations omitted and alterations normalized). The Notes also explain that
"[h]istorically, offenses classified as criminal falsi have included only those crimes in
which the ultimate criminal act was itself an act of deceit." Id. (emphasis added).
Accordingly, the Court will look first to the elements of first-degree criminal
misconduct. The conduct prohibited by ORS 162.415(1) includes, as relevant here,
"perform[ing] an act constituting an unauthorized exercise in official duties[.]" ORS
The Oregon Supreme Court has interpreted that provision to
"forbid unauthorized acts by officials in the course of exercising their official
functions." State v. Florea, 296 Or. 500, 503 (1984) (emphasis omitted). Thus, to
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support a conviction for first-degree official misconduct, ORS 162.415(1)(a)(B), the
only act that the state needs to prove, or the defendant needs to admit to, is an
"unauthorized act" done in the defendant's official capacity. That unauthorized act
could, but does not have to be, deceitful.1
Plaintiffs argue that official misconduct is a "dishonest act" within the meaning
of 609(a)(2) because abusing the power and authority of a government office for one's
own benefit is, "by its nature, a dishonest act."
The Court agrees that official
misconduct could be considered "dishonest" in a broad sense, but this is precisely the
broad meaning of the term "dishonesty" - "breach of trust, a lack of probity or
integrity in principle, lack of fairness, or a disposition to betray" - which the Ninth
Circuit rejected in Brakeen in favor of the narrower meaning "defraud or deceive".
969 F.2d at 829-30 (quotations omitted and alterations normalized).
The Court will not depart from Ninth Circuit's approach here. The Ninth
Circuit's focus on crimes committed by deceit or false statements is consistent with
the Conference Committee's intent that subdivision (a)(2) apply to crimes "bearing on
a witness's propensity to testify truthfully," rather than on crimes probative of a
witness's credibility generally. Fed. R. Evid. 609 Advisory Committee';; Notes. As
the Rules Advisory Committee explains, the 2006 amendment to subdivision (a)(2)
1 Public servants in Oregon have committed an "unauthorized exercise in official duties" by,
for example, seeking sexual gratification from a citizen while on duty as a law enforcement officer,
State v. Gove, 128, Or. App. 239 (1994), State v. Moffitt, 104 Or. App. 340 (1990); appropriating
evidence or state property for personal or another's use, State v. Florea, 296 Or. 500 (1984), State v.
Rodda, 56 Or. App. 580 (1982); asking police officials for "professional courtesy" to reduce or dismiss
a charge against the public servant's romantic partner while serving as District Attorney, In re
Leonhardt, 324 Or. 498, 505 (1997); working a private job while on duty as a Sheriffs Deputy, State v.
Barher, 140 Or. App. 82 (1996); asking employees to perform a personal service on county time while
serving as District Attorney, State v. Gortmaher, 60 Or. App. 723 (1982).
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substituted "the term 'character for truthfulness' for the term 'credibility"' to
recognize that the rule's application is limited to impeachment by evidence of a
witness's character for untruthfulness. Id.
Although the fact that a witness has
engaged in an "unauthorized act" while on duty might suggest that the witness has
been willing to breach the public's trust in the past, the Court cannot say that the
same fact is highly probative of the witness's willingness to lie on the stand under
Was Berge's Crime Actually Committed by Fraudulent or Deceitful Means?
Next the Court considers whether Berge committed first-degree official
misconduct by fraudulent or deceitful means. Although the parties did not brief this
issue, at oral argument, the City provided documents related to the criminal
investigation against Berge to the Court for in camera review. The City noted that
plaintiffs did not attempt to obtain these documents in discovery.
The Rules Advisory Committee advises that the 2006 amendment to Rule 609
provides that Rule 609(a)(2) mandates the admission of evidence of a
conviction only when the conviction required proof of (or in the case of a
guilty plea, the admission of) an act of dishonesty or false statement.
Evidence of all other convictions is inadmissible under this subsection,
irrespective of whether the witness t!xhibited dishonesty or made a false
statement in the process of the commission of the crime of conviction.
Thus, evidence that a witness was convicted for a crime of violence, such
as murder, is not admissible under Rule 609(a)(2), even if the witness
acted deceitfully in the course of committing the crime.
Fed. R. Evid. 609 Advisory Committee's Notes (emphasis added).
"evidence that a witness was convicted of making a false claim to a federal agent is
admissible under" Rule 609(a)(2) "regardless of whether the crime was charged under
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a section that expressly references deceit (e.g., 18 U.S.C. § 1001, Material
Misrepresentation to the Federal Government) or a section that does not (e.g., 18
U.S.C. § 1503, Obstruction of Justice)." Id. Having reviewed the materials provided
by the City, the Court concludes that they do not demonstrate that the "unauthorized
act" to which Berge admitted was an act of dishonesty or false statement.
Plaintiffs also reviewed the materials and informed the Court that it appears
that the City did not provide the full record, as the page numbers to one of the reports
suggests that the report is 200 pages long, but the City provided only 29 pages. That
does not change the Court's conclusion, because plaintiffs bear the burden to show
that a crime was actually committed by fraudulent or deceitful means. Glenn, 667
F.2d at 1273.
Should evidence of Berge's Conviction and the Reasons for his Resignation be
Finally, the Court considers whether the evidence should be excluded. Based
on the analysis above, Berge's 2017 conviction for first-degree official misconduct is
not admissible to attack his character for truthfulness under Rule 609(a)(2) and,
because Berge's resignation was a condition of his conviction, the Court accepts
plaintiffs' concession that evidence of the reasons for the resignation are not
admissible under Rule 609 either. To the extent that defendants seek exclusion of
the conviction and reasons for resignation for this purpose, their motion is granted.
The Court cannot at this time, however, exclude evidence ofBerge's conviction
and the reasons for his resignation for any other purpose. See Fed. R. Evid. 609
Advisory Committee's Notes ("The limitations of Rule 609 are not applicable if a
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conviction is admitted for a purpose other than to prove the witness's character for
The evidence's relevance, probative value, and risk of unfair
prejudice, confusion, or delay will depend on the purpose for which the evidence is
offered at trial, if it is offered at all. For example, depending on the testimony at trial,
Berge's conviction or testimony about his resignation could be offered to contradict a
witness's testimony regarding a material issue, see United States v. Lopez, 979 F.2d
1024, 1033-34 (5th Cir. 1992); or, his guilty plea could be offered as evidence of a prior
inconsistent statement, see United States v. Denetclaw, 96 F.3d 454, 458 (10th Cir.
1996). In addition, the fact of Berge's resignation remains admissible.
For the reasons above, defendants' motions (docs. 78, 81) are GRANTED in
part and DENIED in part. Evidence of defendant Berge's conviction for first-degree
official misconduct, ORS 162.415(1), and of the reasons for his resignation from
Portland Police Bureau is not admissible to attack his character for truthfulness
under Rule 609(a)(2). The Court defers ruling on the admissibility of the conviction
and reasons for the resignation for all other purposes.
IT IS SO ORDERED.
Dated this£ty of December 2019.
United States District Judge
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