Tenon v. Dreibelbis et al
MEMORANDUM re Pltf's MOTION in Limine 133 (Order to follow as separate docket entry) Signed by Honorable William W. Caldwell on 6/26/17. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANTHONY L. TENON,
WILLIAM DREIBELBIS, et al.,
: CIVIL NO. 1:CV-12-1278
Plaintiff, Anthony L. Tenon, an inmate at the Forest state correctional
institution, filed this 42 U.S.C. § 1983 civil-rights suit alleging Eighth Amendment medical
claims arising from treatment he received for a broken jaw while he was confined at the
Smithfield state correctional institution. His claim that defendant Ronald Long, M.D.,
failed to provide pain medication and a soft diet is scheduled for trial.
Plaintiff has filed a motion in limine to exclude from evidence his convictions
for the following offenses: (1) 2001 convictions for criminal attempt and conspiracy to
commit burglary; (2) 2005 convictions for rape of a person less than thirteen years of age,
involuntary deviate sexual intercourse with a person less than thirteen years of age,
endangering welfare of children, corruption of minors, and incest.
Plaintiff filed a brief in support of the motion, and Defendant filed a brief in
opposition. Plaintiff did not file a reply brief. Also, neither party has supplied us with a
record documenting the convictions or showing which convictions are the cause of his
Defendant says the convictions are admissible under Fed. R. of Evid. 609
to impeach Plaintiff’s testimony at trial. In pertinent part, to assess a witness’s credibility,
Rule 609(a)(1)(A) requires that the witness’s conviction for a crime punishable by
imprisonment for more than one year be admitted into evidence, “subject to Rule 403.”
Fed. R. Evid. 403 provides: “The court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.”
A different rule applies to convictions over ten years old or when more than
ten years have passed since the witness was imprisoned on the conviction. In pertinent
part, under Rule 609(b)(1), “if 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.”
Rule 609(b)(1) reverses the balancing that occurs under Rule 403.
Womack v. Smith, No. 06-CV-2348, 2012 WL 1245752, at *3 (M.D. Pa. Apr. 13, 2012).
“Whereas under Rule 403 unfair prejudice must substantially outweigh the evidence's
probative value, for convictions over ten years old, the probative value of the conviction
must substantially outweigh the prejudicial effect.” Id. “The Advisory Committee Notes
for Rule 609(b) emphasize that ‘convictions over 10 years old will be admitted very rarely
and only in exceptional circumstances.’” See United States v. Ponder, No. 16-CR-0056,
2017 WL 2633467, at *1 (M.D. Pa. Jun. 16, 2017)(quoting United States v. Shannon, 766
F.3d 346, 352 n.9 (3d Cir. 2014)).
Among other arguments, Plaintiff contends that the convictions should be
excluded on the following grounds. First, the convictions in 2001 for criminal attempt and
conspiracy to commit burglary are more than ten years old and should be excluded under
Rule 609(b)(1). Second, the 2005 convictions are also more than ten years old and
should also be excluded under Rule 609(b)(1). Third, the 2005 convictions are of such a
heinous nature that they would bias the jury against Plaintiff and prevent them from
properly assessing the factual issues. Further, while a limiting instruction can sometimes
count toward admission of the convictions, sometimes limiting instructions are not
enough, and that is true here, given the nature of the 2005 crimes.
In opposition, Defendant asserts that credibility is a critical issue in this
case, so the convictions should be admitted as relevant to Plaintiff’s credibility. He also
argues that Rule 609(b)(1) does not apply because Plaintiff is incarcerated and the tenyear time frame would only start running from the date of his release from confinement,
not from the date of his conviction. Further, Plaintiff’s concerns about the nature of the
2005 convictions can be obviated by admitting into evidence, not the names of the
convictions, but only “the number of times the prisoner has been convicted of a felony
and the length of the incarceration associated with the felony convictions.” (Doc. 135,
Def.’s Opp’n Br. at p. 1). This would prevent the jury from being biased by the nature of
the convictions while at the same time allowing Defendant to submit evidence bearing on
We agree with Defendant that Rule 609(b)(1) does not apply to the 2005
convictions as we think Plaintiff fairly admits, at least for the purpose of the current
motion, that he is currently incarcerated on these convictions and so the ten-year period
in Rule 609(b)(1) has not yet started to run. (Doc. 134, Pl.’s Br. in Supp. at p. 3)(“There
may be no circumstance under which jurors are willing to award damages to Mr. Tenon in
this unrelated civil suit if evidence of the convictions that led to his incarceration are
However, we think that Rule 609(b)(1) does apply to the 2001 convictions.
Defendant, as the proponent of the evidence, has the burden of showing that the
convictions are admissible. See Ponder, 2017 WL 2633467, at *2 (observing in a
criminal case that the government “‘bears the burden of persuading the court that the
evidence should be admitted, i.e., that its probative value outweighs its prejudicial
effect.’”)(quoted case omitted). Defendant has not shown that Plaintiff is still serving time
on these convictions. Rule 609(b)(1) thus applies. As noted, convictions over ten years
old will be admitted very rarely and only in exceptional circumstances. We find no
exceptional circumstances and will grant Plaintiff’s motion in limine in regard to the 2001
We turn now to the 2005 convictions. Rule 609(a)(1)(A) requires us to use
Rule 403 in deciding whether to admit the convictions. In employing Rule 403, the Third
directed that four factors should be weighed against the
potential for prejudice in admitting a conviction: (1) the nature
of the conviction; (2) the time elapsed since the conviction; (3)
the importance of the witness's testimony to the case; and (4)
the importance of credibility to the claim at hand.
Sharif v. Picone, 740 F.3d 263, 272 (3d Cir. 2014).
Here, on the first factor, the convictions are for the most part sexual crimes.
Like crimes of violence, sexual offenses “are less probative of honesty than are crimes
involving fraud or deceit.” Id. at 273 (discussing crimes of violence). Nonetheless, they
need not be excluded if in part the court explains its reasons for admission under Rule
403. Id. This factor favors admission, since Defendant does not seek to admit the
names of the offenses, just the number of the offenses that qualify as convictions under
On the second factor, the time elapsed since the convictions is
considerable, over ten years. That would normally favor Plaintiff, but he has been in
prison on these offenses since the time of conviction. This favors admission of the
offenses, despite their age. See generally, Ponder, 2017 WL 2633467, at *3.
In Perryman v. H&R Trucking, Inc., 135 F. App’x 538, 541 (3d Cir. 2005)
(nonprecedential), the Third Circuit approved of omitting the specific nature of a conviction to
guard “against the extremely prejudicial effect” on the jury of a particular crime. In Perryman,
the impeaching conviction was for a sexual assault.
On the third factor, the importance of the witness's testimony to the case,
this factor would normally favor Plaintiff as it would appear that it is his testimony that
would be necessary to establish that Defendant failed to provide him with pain medication
and a soft diet. However, since the names of the offenses are not going to be admitted at
trial, this factor is neutral. Ponder, 2017 WL 2633467, at *3.
On the fourth factor, the importance of credibility to the claim at hand, the
credibility of Plaintiff is crucial, as it would appear that it is his testimony that would be
necessary to establish that Defendant failed to provide him with pain medication and a
soft diet. Since Plaintiff’s credibility is crucial, this factor favors admission of the
convictions. Ponder, 2017 WL 2633467, at *4.
Overall, considering the four factors, and that Defendant wants to admit
only the fact of the convictions, we will deny Plaintiff’s motion in limine to exclude the
Motions in limine should rarely be granted pretrial. Womack, 2012 WL
1245752, at *2. We thus consider our decision subject to change depending upon the
evidence presented at trial.
/s/William W. Caldwell
William W. Caldwell
United States District Judge
Date: June 26, 2017
Defendant also wants to admit the length of the incarceration associated with each
conviction, but we think Defendant should be limited to showing that each conviction satisfies
Rule 609(a)(1) in that each offense is for a crime punishable by imprisonment for more than
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